Children: Custody

Baroness Stern: asked Her Majesty's Government:
	How they are planning to respond to the report of the independent inquiry chaired by the Lord Carlile of Berriew into physical restraint, forcible strip searching and solitary confinement of children in custody.

Baroness Scotland of Asthal: My Lords, I am meeting the noble Lord, Lord Carlile of Berriew, on 29 March to discuss his report. The Home Office and the Youth Justice Board are looking at the recommendations in the report. We will announce in due course any action that we propose to take in relation to them.

Baroness Stern: My Lords, I thank the Minister for her reply. Does she agree that the account in the report by the noble Lord, Lord Carlile, of thousands of unjustifiable strip searches of children who may be as young as 12 and the subduing of children through the use of pain, which can lead to injury and permanent damage to young bones, suggests that action is needed? Does she now accept the report's recommendation that the time has come for her responsibility for children in custody to be moved from the Home Office to the Minister for Children?

Baroness Scotland of Asthal: My Lords, I acknowledge what the noble Baroness says about the difficulties that have been identified. Strip searching can, on occasion, be necessary. Of course, it is important for those occasions to be limited and for the procedure to be appropriately undertaken.
	Pain-compliant means of control are strictly regulated. I assure the noble Baroness that we have put in place a code that is monitored regularly to ensure that the implementation is as we would all wish it to be.

Lord Carlile of Berriew: My Lords, I thank the Minister for giving me the opportunity to discuss these matters in perhaps a slightly more intimate setting than this Chamber.
	Does the Minister accept that the purpose of the report that I produced on behalf of the Howard League was not to criticise anybody at all but to assist government and others to move policy forward? Does she also accept that perhaps the most crucial thing about the report is that it seeks to identify children in custody as children rather than as prisoners?

Baroness Scotland of Asthal: My Lords, I understand that that is the thrust of the noble Lord's report. Indeed, I hope that I have indicated that we welcome the report as a contribution to an important debate on the treatment of young people in custody. The noble Lord will know that one of the challenges is that we have some very damaged and disturbed young people, who have, in turn, become very damaging to others. For instance, we currently have in custody more than 50 young people accused of murder. They are damaged young people, and we must do absolutely everything in our power to ensure that they receive the care that they need as children and that the risks that they present are better managed.

Lord Corbett of Castle Vale: My Lords, will the Minister assure us that all those employed to take care of children in custody get the extra, special and sensitive training and retraining that they need, above the standard training that prison officers receive?

Baroness Scotland of Asthal: My Lords, I agree with my noble friend and emphasise how important we think training is. The Youth Justice Board has been rigorous in the way in which it has approached the issue. The monitoring about which I have spoken in relation to the code of practice on behaviour management, which was issued on 6 February, will involve scrutiny of the implementation of that code and, indeed, the training needs that might come about as a result of it. There is a lot of work to do. We have done a lot, but much more needs to be done to improve the system.

Viscount Bridgeman: My Lords, will the Minister include in her meeting with the noble Lord, Lord Carlile, the question of whether, on the basis of prima facie evidence, the Crown Prosecution Service is doing an effective job in prosecuting staff who are believed to have assaulted children?

Baroness Scotland of Asthal: My Lords, I can certainly assure the noble Viscount that we are doing all that we can to ensure that the criminal justice system works more effectively and that prosecutors have specialisation. Noble Lords will know that we have a number of specialist prosecutors in the area of domestic violence and children and that the prosecutors code, which has recently been promulgated, is obviously very important. I absolutely guarantee to noble Lords that we are looking at that issue in relation not only to this area but to many others.

Lord Ramsbotham: My Lords, being a member of the inquiry chaired by the noble Lord, Lord Carlile, brought it home to me, if it needed bringing home, that, tragically, such inquiries and the work of the independent inspectorate of prisons are the only organisations that bring to the notice of the public the disgraceful treatment of those in custody. I am sure that the Minister will agree that compromise inevitably weakens the power of individual organisations. In view of that, does she think it sensible that rather than merely postponing the emasculation of power of the independent inspectorate—the one organisation that can inform her on the treatment and conditions of those for whom she is responsible, including children—it might be more sensible to cancel its merger into the compromise that is the proposed inspectorate of justice, community safety and custody?

Baroness Scotland of Asthal: My Lords, I do not agree that that is right. We have had a number of debates—I am sure that we shall have more—about the way in which we seek to safeguard the function that is currently undertaken by a number of inspectors. That work will continue. Our purpose is to strengthen and better inform the system so that we can do better for those for whom we care.

Lord Soley: My Lords, I thank my noble friend for her generous response to the report. Although uniquely difficult youngsters are involved, we do not have the policy right yet, so I hope that she will read the report carefully and consider our whole strategy towards young people who are difficult to handle and who have to be placed in some sort of custodial or restraint situation. We do not have it right, and we need to rethink the matter.

Baroness Scotland of Asthal: My Lords, I assure my noble friend that that is precisely what we are doing. The code of practice is part of an ongoing review. The way in which we are monitoring it will enable us to change the system as and when the facts demonstrate that that is the right way to go.

Baroness Walmsley: My Lords, how do the findings of my noble friend Lord Carlile line up with the Government's obligations as a signatory to the UN Convention on the Rights of the Child and of Article 37 in particular? Will the Minister note that my noble friend Lord Carlile said:
	"The rule of law and protection of human rights should apply to all children equally, regardless of whether they are detained in custody or in the community"?

Baroness Scotland of Asthal: My Lords, I can assure the noble Baroness that they do.

Lord Elton: My Lords, anybody listening to the exchange between the noble Baroness and the noble Lord, Lord Corbett of Castle Vale, and who has had the task of raising children through the teenage years will realise that there needs to be a change in emphasis in the training of officers. Is it the case at present that the people detaining children are trained primarily as prison officers but take an additional course, as the noble Lord suggested, to bring them up to standard for caring for children? If so, would it not be better that they should be taught the difficult art of raising rebellious teenage children, many of whom will have been subject to abuse, and subsequently given the skills needed to become prison officers?

Baroness Scotland of Asthal: My Lords, those skills are often combined. We appreciate that there are training needs. They are being addressed, and I assure noble Lords that those matters are certainly at the forefront of my mind.

Royal Commissions

Lord Sheldon: asked Her Majesty's Government:
	Why so few royal commissions have been appointed during the past 10 years.

Lord Falconer of Thoroton: My Lords, royal commissions are one of a number of ways used by government of informing and developing policy. We will continue to use them where appropriate.

Lord Sheldon: My Lords, is the noble and learned Lord aware that in the post-war years up to 1980 there were nine royal commissions in every decade? In the 1980s there were none; since then there have been three. As royal commissions are a very thorough way of examining major areas of public concern, should we not return to using them? In 1951, there was a royal commission on the taxation of profits and income. In view of the current complications in the tax system, should we not now consider a similar royal commission?

Lord Falconer of Thoroton: My Lords, I was aware of the broad statistics on royal commissions. The noble Lord is right; although they were used a lot immediately post-war, they were hardly used between 1979 and 1997. They have been used twice since 1997. Some things are very suitable for a royal commission. Some of the things that they have been used for—examining spontaneous combustion in ships in 1875, or, in 1884, housing of the working classes, on which the Prince of Wales was a commissioner—look sensible. The Royal Commission on Royal Commissions in 1919 seemed sensible. I do not agree that a royal commission on the tax system is a good idea.

Lord Waddington: My Lords, does the noble and learned Lord agree that the Government might have saved themselves a load of trouble if they had followed the 1960s precedent and had a royal commission on police force mergers? Am I not right that the HMIC report that proposed the mergers did not advocate a timetable remotely like that adopted by the Secretary of State? All the rush has meant not only wholly inadequate consultation but, in the north-east, proposals that the chairman of the police committee described as exactly the opposite of what local people wanted.

Lord Falconer of Thoroton: My Lords, the question of police mergers is rather far away from that of royal commissions. The uncertainty that a royal commission on police mergers would produce would be very bad for the criminal justice system.

Lord Foulkes of Cumnock: My Lords, does the noble and learned Lord think that it would be appropriate—to use his word—to set up a royal commission to have a systematic and considered look at the role, functions and composition of your Lordships' House?

Lord Falconer of Thoroton: My Lords, I know that the noble Lord is very keen on royal commissions. He said that we should have a royal commission on the constitution in the debate on the Bill of the noble Lord, Lord Baker of Dorking, on the West Lothian question. However, he will remember that the noble Lord, Lord Wakeham, produced a most excellent report. Sadly, so far it has not yet produced reform of our House. I do not know what conclusion you draw from that. Is that a good or a bad thing?

Lord McNally: My Lords, I was impressed by the noble and learned Lord the Lord Chancellor's historical reading. It confirms that Liberal governments have a very good record.
	Did the noble and learned Lord read last night the stark warnings by Mr Rupert Murdoch that technology changes would have a catastrophic effect on the media industry and,
	"build and destroy not just companies but whole countries"?
	It is 30 years since our last royal commission on the press. Isn't it time for another one?

Lord Falconer of Thoroton: My Lords, I did not read Rupert Murdoch's remarks on the threat to the press. We have had three royal commissions on the press—1947, 1961 and 1974—and what on earth has the effect of those been on the press?

Lord Baker of Dorking: My Lords, I was the last Minister to appoint a royal commission, as Home Secretary. It came up with excellent proposals on the right to silence and miscarriages of justice. However, it reported several years after I was Home Secretary, and I was able to take no credit for it, which was a great disappointment.
	As Secretary of State for Constitutional Affairs, will the noble and learned Lord resist the temptation to have a royal commission on the constitution? I know that he is playing around with the concept of an English parliament—rather badly, I may say—but will he resist that temptation? All the recommendations of royal commissions on the constitution have never been implemented.

Lord Falconer of Thoroton: My Lords, I congratulate the noble Lord on his royal commission, which, as he says, produced considerable results. It is a great personal tragedy for him that he never got the credit that he deserved for it. I also feel strengthened by the fact that he says, "Don't appoint a royal commission on the constitution"? I could not agree more.

Baroness Corston: My Lords, may I invite my noble and learned friend the Lord Chancellor to consider that Harold Wilson had the answer to the question when he said that royal commissions took minutes but wasted years?

Lord Falconer of Thoroton: My Lords, some people would say that; I could not possibly comment.

Lord Henley: My Lords, can the noble and learned Lord assure us, bearing in mind how long we have been waiting for the Civil Service Bill, that he has not set up a royal commission on that Bill that is considering matters in secret?

Lord Falconer of Thoroton: My Lords, there is no such royal commission, although there was a royal commission on the Civil Service in 1912.

Lord Forsyth of Drumlean: My Lords, can the noble and learned Lord the Lord Chancellor take the suggestion made by the noble Lord, Lord Sheldon, rather more seriously? As the Chancellor has doubled the size of the tax code in numbers of pages and as there is increasing irritation about the complexity of the tax system and its effect on our competitiveness, surely a royal commission would be ideally suited to look at that matter.

Lord Falconer of Thoroton: My Lords, I indicated that I did not think that it would—the idea that a royal commission lasting over a year should look at the whole tax system does not seem to deal with the fact that the tax system is here and now, and how it is changed is as much a matter of politics as anything else.

Lord Anderson of Swansea: My Lords, as has been said, royal commissions are ineffective. Does the noble and learned Lord's excellent brief indicate how long they have taken and how much they cost?

Lord Falconer of Thoroton: My Lords, unfortunately, my excellent brief does not indicate how long they took or how much they cost. I imagine that that would vary from royal commission to royal commission.

Prüm Convention

Lord Wallace of Saltaire: asked Her Majesty's Government:
	Whether they propose that the United Kingdom should become a party to the Prüm convention on the stepping up of cross-border co-operation, particularly in combating terrorism, cross-border crime and illegal migration, signed by seven European Union member states in May 2005.

Baroness Scotland of Asthal: My Lords, the Government are looking closely at the Prüm convention. No decision has yet been taken. We expect to come to a preliminary view in the next few months.

Lord Wallace of Saltaire: My Lords, I thank the Minister for that Answer. In his Oxford speech some weeks ago, the Prime Minister said two things that were highly relevant to the convention: first, that it had been a mistake that Britain had so often left joining new European initiatives until long after they had been shaped; and secondly, that internal security was one of Britain's highest priorities in the European Union. Bearing that in mind, do the Government not think that they ought to treat the matter with some urgency? Given that this is popularly described as Schengen III, would it be possible for Britain to join the Prüm convention without also signing up to the Schengen convention?

Baroness Scotland of Asthal: My Lords, I assure the noble Lord that we are taking the issue seriously and are giving it the attention that it deserves. In relation to the way in which the Government have reacted to developments in Europe, I hope that noble Lords have seen great energy and engagement right across the field. It is right that we currently have no intention to change our position on Schengen.

Lord Wright of Richmond: My Lords, as the current chairman of Sub-Committee F of the European Union Committee, which has studied the issue both under the chairmanship of the noble Lord, Lord Wallace of Saltaire, in the past and under mine, may I endorse the sentiment behind his Question? Is the Minister aware that, in the context of considering the draft framework decision on the exchange of information under the principle of availability, her colleague, Mr Paul Goggins, wrote to my noble friend Lord Grenfell on 9 January to say that he anticipated that negotiation on the Framework Decision would be informed by the Prüm treaty? Can the Minister say whether the subsequent course of negotiation has made the Government any readier to consider accession to the treaty?

Baroness Scotland of Asthal: My Lords, I confirm that what the noble Lord says is correct with regard to the approach that we are taking. He will know that the Prüm convention contains a number of issues, some of which we readily agree with and would actively seek to implement. Others, as the noble Lord will know, are far more challenging and need greater scrutiny and care.

Viscount Bridgeman: My Lords, can the Minister assure the House that information on the national identity register as envisaged by the Identity Cards Bill will not be shared with our European partners?

Baroness Scotland of Asthal: My Lords, during the passage of the Identity Cards Bill, we have had the opportunity to discuss precisely how information will be shared, especially bearing in mind that we have made it absolutely clear that the information on the database will be kept secure at all times and that our ordinary arrangements for requests from other jurisdictions will be applied.

Lord Wallace of Saltaire: My Lords, our non-formal membership of Schengen means that the extent of British engagement with the Schengen information system, the visa information system, Eurodat and various other Europe-wide databases is not entirely easy to discover. Will the Government commit to providing a report to both Houses of Parliament on the terms and conditions under which the United Kingdom Government now share information under a convention with which we are partly associated but of which we are not a full member?

Baroness Scotland of Asthal: My Lords, I certainly undertake to consider that. The noble Lord will know that our response involves a cross-department approach. He will also know that we are in a position to sign up to all parts of the Schengen convention if we agree with all or any of it. The challenge has always been the "if", which we have not been able totally to guarantee.

Lord Stoddart of Swindon: My Lords, I heard what the noble Baroness said about sharing information from the national identity register with our European neighbours. I heard her today and, indeed, when we discussed the Identity Cards Bill, but can she give an assurance that it will not be possible to use the Legislative and Regulatory Reform Bill to undermine the decision not to share such information?

Baroness Scotland of Asthal: My Lords, I can be confident that the system that we are putting in place under the Identity Cards Bill will be sufficiently robust and have sufficient integrity to enable us to preserve the sanctity of our data in a proper way.

Sudan (Darfur) and Chad

Lord Hylton: asked Her Majesty's Government:
	What representations they propose to make with a view to preventing further loss of life and displacement of people in Darfur and Chad.

Lord Triesman: My Lords, the conflicts in Darfur and Chad have caused thousands of deaths and left millions homeless. We are working to end the conflict in Darfur through our support for the peace talks in Abuja. We are seeking to assist the displaced through our support for the humanitarian programme, and we are helping to protect civilians through our support for the AU mission and its early handover to a United Nations force. We are also pressing Chad and Sudan to end their proxy war and to honour the peace deal that they signed in Libya last month. We will continue to work actively for lasting peace in the region, and we are encouraging all our African and international partners to do likewise.

Lord Hylton: My Lords, I thank the Minister for his reply, which comes in what the United States has termed Genocide Awareness Week. Can the noble Lord put a figure on the total loss of life that has occurred during the past three years of fighting? Is it correct to say that 4,000 people are still dying every month and that a considerable number of villages have been burnt down in Chad? Does he agree that the Government of the Sudan have not only failed to protect their own people but have attacked or allowed attacks on their neighbour? Does that not show that effective international default action is now necessary?

Lord Triesman: My Lords, the situation in Darfur is abhorrent: 1.8 million people are in displaced camps and unable to return home, and 1.5 million more vulnerable people are outside camps and need protection. Estimated deaths are in a range between 70,000 and 400,000, but the truth is that no one knows—I suspect that no one will ever know—so I cannot comment on the figure of 4,000 per month. That certainly indicates that we must all redouble our efforts relating to the Abuja talks; we must ensure that AMIS is as successful as it can be; and we must try to encourage warring parties on both sides of what is an extremely porous border to desist from attacking each other.

Baroness Rawlings: My Lords, President Omar al-Bashir told reporters menacingly that Darfur would be a graveyard for UN troops in the light of the failure of the African Union in not handing over to the UN until September. What is the Government's response?

Lord Triesman: My Lords, regrettably, blood-curdling statements are frequently made by members of the Government of Sudan, by rebel groups there, by the Janjaweed and by everybody else. The art of speaking peacefully seems to be long dead in that region. The reality is that a UN force cannot step up to the mark unless it is fully prepared; the period that has been referred to is the time that will be taken to prepare it. In the mean time, it is critical that the AMIS force succeeds. I have to say that despite grave difficulties the AMIS force has successes to its name. The number of deaths in the areas that it can patrol has decreased, as has the incidence of rapes and assaults on the population. However, this is still a desperately dangerous mission, and in the long run in my judgment the United Nations is the only way in which it can be resolved.

Lord Avebury: My Lords, does the Minister agree that there has been a dramatic escalation in the scale of attacks on civilians since the beginning of the year and that the Janjaweed has crossed the border into Chad, supported by the Government of Sudan? Bearing in mind the hope that has been expressed by the UN Secretary-General that, pending the transfer of responsibility to the UN, measures will be taken to increase the support for the AU, as the Minister just said, will the Government propose that UN close air support be provided to the AU forces, together with the ground troops necessary for their protection, so that they can operate under AMIS command against the militias that are causing such grievous depredations?

Lord Triesman: My Lords, the offer of air support has been made to the African Union in the past and, for reasons of judgment and of military necessity, the AU has declined to accept it. Surveillance from the air has also been offered and rejected. The AU is making the judgments on the ground. These are difficult judgments. We will give support by increasing the number of battlefield planners, observers and others—we can certainly do that to bolster the mission. However, I repeat—I hope that I am not irritating the House in doing so—that many of the tribal peoples who are warring backwards and forwards across what is not very realistically called the border have always crossed that border. The tribal divisions did not know of those borders, and they do not respect them now.

Baroness Sharples: My Lords, is the main problem lack of money?

Lord Triesman: No, my Lords, the financial requirements of the AMIS forces have been met. This country has been the largest donor to that exercise.

Baroness Williams of Crosby: My Lords, does the Minister recognise the disturbing escalation, to which my noble friend Lord Avebury referred, and gradual extension of the battles and combat into Chad itself? Given that Chad is an associated member of the European Union, would it be possible to ensure more effective policing of that, I agree, rather hypothetical border, so that at least the refugee camps and the groups of families from Darfur who have settled in Chad—there are many thousands, as the Minister will know—could be protected and not sucked into the dreadful genocide going on in Sudan?

Lord Triesman: My Lords, I agree completely that that would be desirable, but I do not think that a line of soldiers would achieve that result. In discussions on 21 and 23 February, my right honourable friend the Secretary of State for International Development put to the Government of Sudan the very issues that the noble Baroness has just put to me. On 3 February, I also raised them with the Sudanese Foreign Minister. We have also put £5 million towards work in Chad on the issues of security and humanitarian response, which we pursue through the permanent representative at the United Nations. We have to disengage these forces. We need a comprehensive peace plan comparable to that between the north and the south, which has restored a degree of peace at least in the south of Sudan. There has to be a political as well as a security solution.

The Earl of Sandwich: My Lords, the Minister said that only the UN can solve this problem. Surely one of the troubles is that the UN has a very limited mandate to help displaced persons internally. These are really second-class citizens; they are not receiving the same attention as the refugees on the other side of the border, as he rightly says. Should not the UN Security Council take this up and extend the mandate to internally displaced persons?

Lord Triesman: My Lords, for the purposes of clarity, I should explain that the AMIS forces are operating under a mandate granted to them by the African Union itself, albeit approved by the UN. If African Union troops are to move to blue-hat status so that the UN is responsible for the entire operation—the logistics, the planning and the protection of the humanitarian effort—it is essential that a very crisp and clear mandate from the Security Council accompanies the work of that force, not least because we want the disarmament of the warring factions along the border and, indeed, deep inside Darfur.

Lord Rea: My Lords, will the Minister give a little background to the reason why the African Union force has declined logistic and air support? Will the United Nations force, which will supplant it, be able to receive that support? The six months or so before it takes over will be very dangerous, and I wonder whether it would be suitable to suggest to the African Union forces that they think again about receiving our logistical support.

Lord Triesman: My Lords, no final decision has been taken on the UN. The African Union has agreed in principle, which I welcome, because it is a genuinely helpful step. The African Union has not been able to deploy its helicopters at all effectively, partly for logistic reasons—often, the fuel has not been in the same place as the helicopters—and sometimes because the Government of Sudan have denied flight plans until weeks after the event that the helicopters were supposed to pursue. These are all serious difficulties. If the UN mission is to be agreed—I say "if" carefully, because the decision is still to be taken—there must be absolute clarity about the logistics, the means of deployment and the mandate under which it operates. I believe that that will be a fundamental step forward, but I must say that that step has been made possible because, in the first of its really major deployments, the African Union has held the ring in what we all know to be a desperately dangerous place.

Business

Lord Grocott: My Lords, with the leave of the House, we shall hear two Statements, which will be repeated later today. We shall take them after the Report stage of the Fraud Bill. The first is on the BBC White Paper, and will be read by my noble friend Lord Davies of Oldham. The second is on the gas market, and will be read by my noble friend Lord Sainsbury of Turville.

Health Bill

Baroness Royall of Blaisdon: My Lords, I beg to move the Motion on the Order Paper standing in the name of my noble friend Lord Warner.
	Moved, That it be an instruction to the Grand Committee to which the Health Bill has been committed that they consider the Bill in the following order:
	Clauses 1 to 9
	Schedule 1
	Clause 10
	Schedule 2
	Clauses 11 to 55
	Schedule 3
	Clause 56
	Schedule 4
	Clause 57
	Schedule 5
	Clauses 58 and 59
	Schedule 6
	Clauses 60 to 68
	Schedule 7
	Clauses 69 to 79
	Schedules 8 and 9
	Clauses 80 to 83.—(Baroness Royall of Blaisdon.)

Lord Naseby: My Lords, would it not be more sensible to take Clauses 10 to 83, along with their associated schedules, first, and then to take Clauses 1 to 9 and their associated schedule on the Floor of the House? After all, Clauses 1 to 9 and the associated schedule directly affect 25 per cent of this nation. That 25 per cent is a very large minority, which deserves the right to have those clauses debated in public on the Floor of the House, rather than shunted away in some Grand Committee.

Lord Stoddart of Swindon: My Lords, I support what the noble Lord has just said. I made the same point earlier, and asked the Government to reconsider their position. I hoped that they would do that through the usual channels. Was that request taken into account, and was there any discussion with the usual channels so that we could have a democratic debate on Clauses 1 to 9, which, as the noble Lord has just said, remove the freedom that 25 per cent of the population have had for a very long time?

Baroness Royall of Blaisdon: My Lords, we have discussed this issue previously. It was agreed by the usual channels that this Bill would go to a Grand Committee. It is usual practice that Bills should not be split. Of course, there will be adequate time for discussion of this Bill on Report on the Floor of the House.

Lord Higgins: My Lords, the increasing tendency to send Bills to Grand Committee, whether or not agreed by the usual channels, combined with the tightening of the rule on Third Reading, means that the opportunity for a number of votes on a Bill is increasingly limited. It may be that there should be 10, 12 or 14 important votes and one cannot get all those in on Report.

Baroness Royall of Blaisdon: My Lords, I understand that there have been no practical changes to the usual procedures at Third Reading, and that the number of Bills going to Grand Committee every year has not changed.

Lord Campbell of Alloway: My Lords, some years ago usual procedure was changed when I wanted to have certain clauses—I have forgotten the Bill—debated on the Floor of the House. I was told by the Clerk of the Parliaments that it was too late and that the usual channels had made a decision, but that it could be raised at a later stage. I was told that the Standing Orders had been revised to make possible the sort of application made now.

Lord Grocott: My Lords, as this debate has moved on rather from the order of consideration on the Health Bill, perhaps I may make a more general response. Obviously, all the procedures of the House are in the hands of the House. While we cannot betray the privacy of the usual channels, it is fair to say that there are discussions about the appropriate place to send virtually every Bill. Indeed, on virtually every Bill, there are one or two Members of the House, if not more, who think that it should be debated on the Floor of the House.
	There is no subterfuge on this; it is very simple arithmetic. We could accede to all requests for all Bills to be taken on the Floor of the House, but it would involve sitting on Christmas Day, for example. I get the feeling that that would not have the general approval of the House. It is the nature of the job for the usual channels to please some of the people some of the time. That is the best we can do. It is done in good faith. I am sorry if some people are sometimes upset by the decision. But, overall management of the House gives security to the dates of the Recesses, which is a universally popular move that has not disadvantaged either the Government or the Opposition. We get it right most of the time and I crave the support of the House in the decision that we have made.

Lord Elton: My Lords, perhaps the Chief Whip will reflect on the fact that, not many years ago, when we had perfectly adequate Recesses and sat for reasonable lengths of time, we managed to get through the whole of government business without having a Grand Committee at all. This debate highlights the steadily increasing volume of legislation, if not in the number of Bills, in the length of Bills, which is going systematically wrong with the system of government in this country. Will the Chief Whip take this back to his friends in another place to consider whether we cannot manage our business more effectively?

Lord Taylor of Blackburn: My Lords, is my noble friend aware that in those days we had one Opposition party? Now we have two.

Noble Lords: Three!

Lord Higgins: My Lords, with respect, perhaps I may suggest that the Chief Whip has somewhat missed the point. There may be very complicated Bills on which the House would like to have a large number of votes. There may be a case for taking most of the Bill in Grand Committee, but with a provision for important clauses to be taken on the Floor of the House in Committee. Would the noble Lord consider that or perhaps refer it to the Procedure Committee?

Lord Naseby: My Lords, I also make a plea to the Chief Whip: this is a genuine request. I am quite happy for the vast majority of the Bill to go to Grand Committee, but millions of people outside this House have strong feelings on Clauses 1 to 9. But one day—I am willing to restrict it to one day—on the Floor of the House does not seem to be asking too much for those of us who wish to put the minority view affecting, as I have already said, 25 per cent of the nation.

Lord Grocott: My Lords, we do not know whether it is a minority or majority view in this House; we will have to wait and see. There are all sorts of possibilities, but this House has the opportunity to debate the matter on the Floor of the House on Report and at Third Reading. That is two opportunities, which is pretty reasonable.
	On the wider point raised by the noble Lord, Lord Elton, I could bore the House rigid with the volume of legislation over the past 30 years if I had my notes with me, but I can assure him that there is no dramatic difference between the numbers of Bills introduced in Queen's Speeches during this Government in comparison with the figures for the previous 18 years under the Conservative government. Off the top of my head, there are between 31 and 33 Bills, of varying degrees of complexity. We could run through the contentiousness and complexity of Bills under the previous government but I do not think it would get us very far. Frankly, if there were anyone in the Chair this discussion would be ruled grotesquely out of order already, as we are meant to be debating the Motion on the Health Bill. But I have trespassed and I am sure everyone else has as well.
	My noble friend Lord Taylor mentioned the politics of the House and what used to happen in the old days, with regard to the number of opposition parties and the size of the government party. I would put every Bill on to the Floor of the House if I could have a majority of about 200, which is what the previous administration had in this House. It does help a little but we must not trespass into the political arena.
	I take very seriously the point about whether we could split Bills, with one part discussed on the Floor and another discussed in Grand Committee. First, the Procedure Committee has ruled against this; furthermore, it would add unbearably to the burden of the usual channels. The usual channels do not get a vast amount of sympathy here or anywhere else, but if, on every single Bill, in addition to the nightmare which we are experiencing of a debate about whether it should be in Grand Committee, we then had a debate on which part of the Bill should be in Grand Committee and which should not, some of us would really despair about how we could ever get the business organised through the House. I am sure that we are a good, friendly, self-governing House and we can move on to the next business.

On Question, Motion agreed to.

Fraud Bill [HL]

Report received.
	Clause 2 [Fraud by false representation]:

Lord Goldsmith: moved Amendment No. 1:
	Page 2, line 6, leave out "by words or conduct"

Lord Goldsmith: My Lords, in moving Amendment No. 1, I shall speak also to Amendment No. 2. It has always been the Government's intention that the Clause 2 offence should apply to representations made to a machine just as it applies to representations made to a person. However, having reflected on the Bill since Committee, we have concluded that as the Bill stands, it is not entirely certain whether the Clause 2 offence would apply equally to representations made to a machine as it does to representations made to a person.
	In a letter that I wrote on 15 October of last year I set out how these amendments will clarify the offence to make sure that false representations made to machines would be a crime under the new general offence of fraud. It is clear—and it is stated in the Explanatory Notes to the Bill—that the Clause 2 offence extends to false representations posted on a website. Even if the representation is not read by another person, the information, once transferred to a website, is open to be read and intended to be read by others. The position is not so clear for representations made to a machine, which in some cases may never be read by a person.
	In its report, the Law Commission notes that it is arguable whether there is a false representation if data are inputted into a machine even if there is no deception of a person. So there is potentially an element of uncertainty here. The commission was naturally very conscious of the problem of representations to machines, but its view was that the problem would be resolved by Clause 11 as it arises only in relation to services; they are not property and hence cannot be the subject of a theft charge.
	The Clause 11 offence should indeed be used in cases where services have been dishonestly obtained, but on one reading of Clause 2 as it stands, the prosecution might need to rely on a charge of theft where property has been obtained by inputting data into a machine. We consider that it would be undesirable to differentiate between cases where property is obtained fraudulently by a representation made to a machine, which in practice operates on behalf of a person, and where the representation is made directly to a person. For example, we see no need to distinguish between a credit or debit card tendered to a machine and cases where the card is tendered to a person. Indeed, in many everyday situations it is a combination of the two and, increasingly, the sales assistant takes a back seat while the customer inputs the PIN into the card machine.
	The Law Commission said that its new offence would apply even if the person to whom the card is tendered is indifferent to whether the representation to him is false, but it may not always be clear in such cases whether the representation is actually made to an indifferent sales assistant or simply to the machine. For example, on occasions the sales assistant may not even look at the card as the card owner himself inserts the card into the machine and enters the PIN. The practical difference between a person misusing a credit card before a sales assistant indifferent to whether a representation is false and a representation being made without the presence of any assistants seems to us to be negligible.
	We do not want law enforcers to face unreasonably technical choices in making charges and we consider therefore that the Bill should make it clear that a false representation should be an offence whether made to a machine or to a person. This is done by making amendments to provide expressly that representations may be implied and that a representation may be regarded as being made where it or anything implying it is submitted to any system or device, the aim being to clarify, for example, that the entering of a number into a chip-and-pin machine is a representation.
	The Clause 2 offence, like the other limbs of the general offence of fraud, is offender-focused. It avoids the need to identify a victim who has been deceived by the actions of the offender. These amendments would ensure that the operation of the offence is properly aligned with this underlying principle. I beg to move.

On Question, amendment agreed to.

Lord Goldsmith: moved Amendment No. 2:
	Page 2, line 9, at end insert—
	"( ) A representation may be express or implied.
	( ) For the purposes of this section a representation may be regarded as made if it (or anything implying it) is submitted in any form to any system or device designed to receive, convey or respond to communications (with or without human intervention)."
	On Question, amendment agreed to.

Lord Goodhart: moved Amendment No. 3:
	After Clause 5, insert the following new clause—
	"ABOLITION OF OFFENCE OF CONSPIRACY TO DEFRAUD
	The common law offence of conspiracy to defraud is abolished."

Lord Goodhart: My Lords, this amendment introduces into the Bill the abolition of the offence of conspiracy to defraud. In moving the amendment, I wish to speak also to Amendments Nos. 5 to 16 inclusive. Of those, Amendments Nos. 7 to 16 are purely consequential and I shall not mention them further. Amendments Nos. 5 and 6 create a sunrise clause which, for reasons I shall explain later, would delay the implementation of the abolition of the offence of conspiracy to defraud for a period of not less than three years.
	The Bill creates a number of new offences and for the first time makes fraud a statutory offence and defines it. Whenever there is a statutory offence, conspiracy to commit that offence is itself an offence—and that is as true of the new offences in this Bill as it is of any other statutory offence. The amendment would not prevent the conviction of those charged with conspiracy to commit any of the statutory offences. It refers merely to the common law offence of conspiracy to defraud. It is said that, as regards conspiracy to commit a statutory offence, there are procedural problems, but these are being reviewed by the Law Commission in its current work on the laws relating to participation in crime, and it is to be hoped that we will have its recommendations quite soon.
	The offence of conspiracy to defraud is a common law offence, which means that it has been created by the decisions of judges and not by an Act of Parliament. It is an offence that is anomalous because defendants can be convicted of conspiracy to defraud even if what they have done would not be an offence at all if it was done by one person alone. The Law Commission, in its 1976 report, said emphatically:
	"The object of a conspiracy should be limited to the commission of a substantive effect, and there should be no place in a criminal code for a law of conspiracy extending beyond this ambit. An agreement should not be criminal where that which it was agreed should be done would not amount to a criminal offence if committed by one person".
	In its latest report from 2002, which led to this Bill, the Law Commission said:
	"This Commission has repeated its adherence to this principle in subsequent reports and we believe it commands very wide support. Either conspiracy to defraud is too wide in its scope (in that it catches agreements to do things that are rightly not criminal), or the statutory offences are too narrow (in that they fail to catch certain conduct which should be criminal), or—which is our view—the problem is a combination of the two. On any view, the present position is anomalous and has no place in a coherent criminal law".
	Later in the 2002 report, the Law Commission said:
	"If it is thought that certain torts, breaches of contract or equitable wrongs should be criminal, legislation can be framed with reference to the particular kinds of conduct involved. To retain conspiracy to defraud on the grounds that it might occasionally prove useful in certain cases would, in our view, be an excess of caution. Since it is not practicable to identify all such cases in advance, it would mean that we could never be in a position to abolish conspiracy to defraud, unless we were willing to replace it with a general dishonesty offence, an option that we rejected in Part 5, above. The advantages of abolishing it, in our view, greatly outweigh any possible advantage that might accrue from retaining it alongside the new offences we recommend. We believe that those offences cover enough of the ground presently covered by conspiracy to defraud to make it unnecessary to retain that offence any longer".
	The offence of conspiracy to defraud may indeed have unexpected and unwelcome consequences. Let us take price fixing—a business cartel—as an example. Price fixing was not, I believe, an offence in the United Kingdom until 1998. However, the Americans have successfully argued in an extradition case that a price fixing agreement entered into before 1998 was a conspiracy to defraud in English law and therefore met the test of dual criminality necessary for extradition. This was totally unforeseen and shows the enormous degree of uncertainty that makes conspiracy to defraud an unsatisfactory offence. From the point of view of the prosecution, it may be that this very uncertainty makes it attractive, but this contravenes a basic principle: that the law—in particular, the criminal law—should be certain.
	Until now there has been no statutory definition of fraud. We now have one in Clauses 1 to 4 of the Bill. That makes it plainly inappropriate to have an offence of conspiracy to defraud involving acts that do not amount to fraud under the statutory definition. It is possible that the courts might decide that it was no longer appropriate to charge people with common law conspiracy to defraud now that we have a statutory offence of fraud.
	I am well aware that the views of the Law Commission have not met with unanimous approval. I have noted, in particular, the views of the Rose committee, chaired by Lord Justice Rose. I understand that and see that it has an arguable case. I believe that the Law Commission has made a convincing case for the abolition of the offence, but I would not object to a trial period to see whether the new offences are effective and whether there is still a need to make use of the common law offence.
	The Government, indeed, have said that it is their aim to abolish the common law offence of conspiracy to defraud in the long term. The noble and learned Lord the Attorney-General said in Committee that,
	"the Government commit to review the operation of the Act three years after its implementation".—[Official Report, 19/7/05; col. 1447.]
	I am certainly happy to accept the three years as being a reasonable trial period. Therefore, our Amendments Nos. 5 and 6 would put on the face of the Bill a prohibition on bringing into force provisions which would abolish the offence of conspiracy to defraud within that three-year period. That does not, of course, mean that the provision will come into force at the end of that period; further time will be needed for review, for example. However, the inclusion of these provisions would, I believe, put some pressure on the Government—which, by that time, may not be the present Government—to proceed with a review soon after the three-year trial period has ended. It would also mean that if the review showed that the common law offence was not needed, provisions to abolish it could be brought into force by a simple commencement order. It would not be necessary to wait for an appropriate Bill and to tag these provisions on to it, which might take considerable time.
	If the review showed that the common law offence was still needed, the Government could simply leave the provisions uncommenced and repeal them at a suitable moment. Enacting these provisions again is unlikely to be a priority and, if they are taken out of the Bill, I believe that there is a real risk that they will be ignored by future governments and we will be left for the foreseeable future with an anomalous and uncertain offence. I beg to move.

Lord Kingsland: My Lords, I spoke on this matter, at inordinate length, on Second Reading on 22 June 2005 and in Committee on 19 July 2005.
	As your Lordships are aware, under the offence of conspiracy to defraud, it can be a criminal offence for two people to agree to do something that would otherwise be lawful. That poses the following problem to our legal system. The jury's decision on dishonesty determines whether a particular set of facts is a crime. In more technical language, the decision on the mens rea of a crime in a court determines the constitution of the actus reus of a crime, so an activity can be made fraudulent simply because of the jury's decision on dishonesty.
	The consequence of this is that it delegates to the jury the responsibility for defining what activity is fraudulent, and that is really the task of Parliament and not the jury. It also enables the prosecutor to prosecute in a criminal court for an activity which the prosecutor thinks ought to be a crime but is not defined as a crime on the statute book.
	It is because of this underlying defect—I would say a constitutional defect—in the definition of conspiracy to defraud that the Law Commission in its latest report stated, unequivocally, that the offence ought to be abolished. It also established—in my view, beyond peradventure—that the new definition of fraud is so comprehensive that it covers all the circumstances in which, previously, the offence of conspiracy to defraud had been deployed.
	There are, however, circumstances that the new offence might not cover, and the example given by the noble Lord, Lord Goodhart, is one of the more important ones. I submit, however, that if the Government want to make the offence raised by the noble Lord, Lord Goodhart, an offence in criminal law—which they ultimately did, in 1998—they should do so in terms and not retain an ill defined discretion to pick and choose what particular set of facts will be a crime in particular circumstances.
	In principle, I would be for following the recommendation from the Law Commission today. However, I recognise—as did the noble Lord, Lord Goodhart—that a number of authoritative bodies have suggested that there may yet be a role for the offence of conspiracy to defraud. I have said, both openly and in private to the noble and learned Lord, Lord Goldsmith, that I have been particularly influenced by the views of the committee chaired by Lord Justice Rose—the finest criminal judge in the country. Therefore, the proposal made in the amendments gets the balance right. Let us see what happens—and whether there is still a need for the offence—then review the whole matter in three years' time. I hope that the noble and learned Lord the Attorney-General will respond constructively to the debate that has just taken place, as I would not want the Government and the Opposition to be confrontational on all this.
	In my submission, the offence ought not to be on the statute book. If the Attorney-General still doubts that—since he is not only leader of the criminal Bar, but the Government's adviser on all these matters—then his views should be given real weight. Yet the Law Commission has looked into it in intimate detail and its view should equally be given great weight. In my view, it should prevail after a period of three years.

Lord Lloyd of Berwick: My Lords, I spoke at Second Reading in favour of abolishing conspiracy to defraud. In many ways, I still favour abolishing such a wide and amorphous way of prosecuting people. It seemed to me that we were missing an opportunity to be rid now of conspiracy to defraud, one which might not arise again. However, the noble and learned Lord the Attorney-General was good enough to send me the views of the Rose committee on this matter, and I have since had an opportunity to talk briefly with Lord Justice Rose. That leaves me in the awkward position of being in favour of both the Law Commission's strong recommendation and, at the same time, the views of Lord Justice Rose. At the moment I am wobbling down in favour of the latter, but I wait to hear how the noble and learned Lord the Attorney-General replies.

Lord Goldsmith: My Lords, we return to a topic which we have debated at some length, most recently—albeit some time ago—on 19 July 2005. The essential argument against prospective repeal is that we do not yet have a clear picture of whether repeal is possible and, if so, whether ancillary changes to the law are needed. Let me just make good that latter point: the noble Lord, Lord Kingsland, who has recently spoken, said, if I may paraphrase, that the Law Commission took the view that there was nothing that could not be prosecuted under the new offences that could not be prosecuted under conspiracy to defraud. The noble Lord shakes his head; rightly, if I misunderstood him, as that is not what the Law Commission said. It recognised that the new offences would not cover everything for which conspiracy to defraud could be used.

Lord Kingsland: I am most grateful, my Lords, to the noble and learned Lord for giving way. I had thought that I had said in terms that the new offence of fraud did not cover all possible criminal offences. I had hoped to have made that clear, but if I did not then I would like to do so now.

Lord Goldsmith: My Lords, then we are in agreement on what the Law Commission said. The Law Commission recognised that some of the things that would not be covered were things that it accepted there was a good case for saying should be criminal. I make this point at this stage because I have said that we do not yet have a clear picture of whether repeal is possible, and if so whether ancillary changes to the law are needed. Despite the fact that this point has arisen at Second Reading and in Committee, no one has come forward with amendments proposing changes that would go along with the repeal of the common law offence of conspiracy to defraud so as to fit those gaps. I will come back to that—it is one of the disadvantages of a prospective repeal, because we have not identified those gaps perhaps with sufficient precision to be able to say what would need to be put in their place.
	The most important point is that we are not yet in a position to draw conclusions from the operation of the new fraud offences. We intend and hope that when the Fraud Act is in force, it will be the primary tool used to prosecute fraudsters. The offences in the Bill, and the charge of conspiracy to commit them, should be flexible enough to cover a wide variety of fraudulent activities, some of which have until now been difficult to capture. Aside from the new general offence, the offences of possessing and making articles to commit fraud and of fraudulent trading applicable to businesses other than companies will assist law enforcers to tackle frauds that previously may have required to be dealt with under the common law.
	I have said before that we need to retain common law conspiracy to defraud for two reasons. We have spent a lot of time looking at this. It has meant not just that noble Lords have focused more on this, but that we have focused more on this. I certainly have done so in detail. If anything, I am more persuaded at this point than I was before that we need to retain common law conspiracy to defraud for the time being. First, it has a broad practical application that the Bill's offences may not be able to reproduce in every case. The flexibility of the common law offence is most effective in containing the detail involved in very large and complex cases, where there may be many defendants and multiple counts on an indictment. The conspiracy to defraud offence provides the ability for the prosecution to reveal and for the court to see a fraudulent course of conduct from beginning to end.
	On 19 July, I identified some of those people who had taken the view and responded to the Government's consultation by saying that the common law offence should not be repealed. They included, and that had been apparent from the start, those prosecutors who are charged with the responsibility of prosecuting these offences, the Crown Prosecution Service and the Serious Fraud Office. It went beyond that to the Association of Chief Police Officers; the Fraud Advisory Panel, which has a wide and experienced membership; the Law Society; the Confederation of British Industry; the NHS Counter Fraud and Security Management Service; the British Bankers' Association; the Association for Payment Clearing Services; and the British Retail Consortium. Quite a number of different bodies have supported it.
	I referred also to the Rose committee in particular. The noble and learned Lord, Lord Lloyd of Berwick, asked me at that stage whether there was any record of what the Rose committee had said. I undertook to follow that up, and I sent to him and to others who took part in the debate the views of Lord Justice Rose and his committee in a letter dated 26 July 2005. As it has been referred to by all those who have spoken so far, it is right that I should put on the record what Lord Justice Rose wrote. He said:
	"It would be risky to repeal common law conspiracy to defraud as it can be the most effective charge in a case where multiple defendants are engaged in a fraudulent course of conduct. There are limitations on the law of statutory conspiracy, which has had something of a chequered history. All the judges present at the meeting agreed the Bill should not repeal common law conspiracy to defraud".
	I find that a very strong endorsement of where we stand at the moment and of the approach that we ought to adopt.
	We will all recall the legislative solutions that we have proposed in the past to solve all problems, but which turned out, in the event, not to do so. This may have been in the mind of the Rose committee at the time. The Theft Acts themselves come into that category; they had to be amended several times and we are now making an even more radical change. It may therefore be cautious of us to want to retain the offence for the time being, but the caution is well supported by those who know what they are talking about. It is an appropriate caution in a serious matter.
	The alternative—I used the word on the last occasion—would be irresponsible. In the face of prosecutors, police and senior judges saying that this is a risk, it is not a risk that I am prepared to take. Nobody who is serious about prosecuting fraud—as I hope the whole House is—would want to take that risk.
	Nor do we want to add to the real problems we already face in the management of some trials of large or complex cases. We are grateful for the steps that the Lord Chief Justice has taken to address this issue in the protocol for the control and management of heavy fraud and other complex criminal cases. Yet it is too early to reach a conclusion on its effect. We will return to that in the course of this Bill. We also hope that the provisions on multiple offending in the Domestic Violence, Crime and Victims Act, which we plan to implement this year, will have an impact on the management of complex fraud trials. Yet we need experience of how that operates before we can conclude that it has had the affect that we hoped for.
	The second reason not to repeal the common law is that there remain some specific forms of conduct that can be prosecuted only as conspiracy to defraud. One reason for that is the problem with statutory conspiracy, because of the limitations in that area of the law. In Committee, and in a letter sent out before that stage, I explained—probably at too much length—some of the problems. A particular problem is where the final offence is committed by somebody outside the conspiracy. A number of people can conspire together, the purpose of which is to ultimately enable someone else to commit an offence. If that person is outside the conspiracy, then they cannot all be charged as part of a statutory conspiracy. Statutory conspiracy also requires a degree of knowledge of the substantive offence to be committed. I have done my best to draw attention to what these problems are; I set it out in the letter, I explained it in the House, and I held an open meeting to which I invited all noble Lords who were interested to hear from technical experts so that we could go into these problems. Unfortunately, only the noble Baroness, Lady Anelay, was able to attend that meeting, but I have done my best to demonstrate the problems. I therefore strongly urge the House to recognise the undesirability of removing this offence for the time being.
	The noble Lord, Lord Goodhart, would say that this is not what he is doing, because he leaves a minimum three-year period before the repeal would come into effect. That is not a satisfactory conclusion. It is not tidy, as far as legislation is concerned, to put prospective repeals on to the statute book. I certainly do not think that it is a good way of proceeding when one of the reasons for waiting is to see what gaps, if any, the new offences throw up. Surely the right way to proceed is to review the operation of the new offence, and see whether it establishes not only that the common law offence can after all be repealed, but also what changes may need to be made to go along with that, by bringing certain other offences into statute, and so forth.
	I recognise two things: first, that it is necessary to review the operation of the act. I have made that clear, and that the act will be reviewed in three years' time, as the noble Lord, Lord Goodhart, says. That is where he gets his three years from. It will be reviewed. Secondly, I propose to recognise the concerns that some noble Lords have expressed about the overuse of conspiracy to defraud by giving guidance to prosecutors when the new Act comes into effect, outlining the criteria to be considered before they use the common law offence. It will ask prosecutors to consider first whether the behaviour could be prosecuted under statute, under the Fraud Act 2006, or under some other Act as a statutory conspiracy. It will also outline the cases in which the common law charge may be appropriate and—noble Lords may think this important—will ask prosecutors to record their reasons for using the common law charge in any case for which they do so. That will have two benefits: it will ensure that the reviewing prosecutor has focused his or her mind on why the common law offence is the right one to use in that case; but it will also provide us with a record which we can then use to inform our further deliberations in three years' time.
	I am concerned that prospective repeal would create difficulties, leaving us with a degree of uncertainty in the law by having something on the statute book which might or might not come into effect. Prosecutors have to plan how they will deal with offences. These offences take time—quite some time, in some cases—to investigate. Knowing what charge you are going to be able to bring is important.
	I will be happy to share with noble Lords a working draft of the guidance, if that will be helpful, but I urge noble Lords to see that my proposed review guidance, which will help to inform that review, ought to meet their concerns. It ought to be a happy compromise from our current position.

Lord Goodhart: My Lords, I am grateful to the noble and learned Lord for giving way. Will this draft guidance be available before Third Reading?

Lord Goldsmith: My Lords, I do not know whether we have a date for Third Reading. If it will help noble Lords, I will make a draft available before Third Reading.

Lord Monson: My Lords, the noble and learned Lord intends to give guidance to British prosecutors with the strong suggestion that they should not be too zealous in their use of the conspiracy offence. Does he agree that he has no influence over American prosecutors?

Lord Goldsmith: Little, my Lords. That is an advised remark, because we have quite significant contacts with US prosecutors. But it would be foolish of me to suggest that I can in any sense direct how they proceed in the way that I can give guidance to English and Welsh prosecutors. The noble Lord is absolutely right.
	On the basis of what I have said, I invite the noble Lord, Lord Goodhart, not to press his amendment.

Lord Goodhart: My Lords, I remain concerned about this matter. Perhaps the chief problem with the offence of conspiracy to defraud at common law is that it is extremely broad. I note what the noble and learned Lord has said about the Rose committee—Lord Justice Rose has said that it would be risky to repeal the matter. It is risky, although I am inclined to think that whether or not that risk will materialise will be known within the next three years.
	The noble and learned Lord has come forward with one new suggestion: that he will give guidance to the prosecutors and produce a working draft of that guidance to be made available to us before Third Reading. I regard this as a finely balanced matter. I note with regret that the noble and learned Lord, Lord Lloyd of Berwick, has wobbled slightly on to the other side. I recognise that there are difficulties. In the circumstances, before I make a final decision, it is my intention that we should see the draft guidance that the noble and learned Lord, Lord Goldsmith, plans to produce. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Thomas of Gresford: moved Amendment No. 4:
	After Clause 13, insert the following new clause—
	"SUBSTITUTION OF SECTION 43 OF THE CRIMINAL JUSTICE ACT 2003
	For section 43 of the Criminal Justice Act 2003 (c. 44) (applications by prosecution for certain fraud cases to be conducted without a jury) substitute—
	"43 AMENDMENT OF THE COURTS ACT 2003
	(1) The Courts Act 2003 (c. 39) is amended as follows.
	(2) In section 69(1), at the beginning insert "Subject to section 69A,".
	(3) After section 69, insert—
	"69A CRIMINAL PROCEDURE RULES IN COMPLEX FRAUD CASES
	(1) There are to be special rules of court (called the "Criminal Procedure Rules in Complex Fraud Cases") governing the practice and procedure to be followed in the Crown Court in complex fraud cases.
	(2) Criminal Procedure Rules in complex fraud cases are to be made by the Criminal Procedure Rule Committee.
	(3) The power to make Criminal Procedure Rules in Complex Fraud Cases includes power to make provision for—
	(a) the determination of a case as a complex fraud case;
	(b) management hearings for complex fraud case trials;
	(c) prior to the commencement of the trial—
	(i) delivery of statements of case by both prosecution and defence;
	(ii) agreement of a schedule of relevant facts;
	(iii) agreement of documents to be disclosed to the jury;
	(iv) agreement of a list of issues;
	(v) exchange of expert evidence;
	(vi) the determination of preliminary issues, including applications to stay or dismiss for abuse of process;
	(vii) on the application of the defendant, indications of sentence from the court.
	(d) at trial—
	(i) the composition, vetting and challenging of the jury panel;
	(ii) the making of opening statements to the jury by both prosecution and defence;
	(iii) an appropriate recess thereafter for consideration by the jury of the opening statements, the agreed facts and documents and agreed list of issues;
	(iv) opportunities for clarification by the jury of the material and evidence before them at all stages of the trial;
	(v) the electronic presentation of evidence;
	(vi) the limitation of prolix cross-examination.
	(4) The power to make or alter Criminal Procedure Rules in Complex Fraud Cases shall be exercised in accordance with the principles of section 69(4) and shall follow the process set out in section 72.
	(5) The Lord Chancellor shall have the same power to amend, repeal or revoke any enactment contained in section 73 in order to facilitate the making of Criminal Procedure Rules in Complex Fraud Cases."

Lord Thomas of Gresford: My Lords, I understand that it is the Home Secretary's intention to abolish jury trials in complex fraud cases through a stand-alone Bill, and not to proceed under Section 43 of the Criminal Justice Act 2003. Your Lordships will recall that the noble and learned Lord the Attorney-General announced in June last year that he would introduce measures in both Houses to activate Section 43. We started that process but it will not now be completed.
	We on these Benches cannot agree that it is necessary or desirable to abolish juries in complex fraud cases. It is not thought to be in America. The trial of the two top people in Enron started in Houston, Texas at the end of January on 31 counts of conspiracy, fraud, insider trading and lying to auditors. In this country, counsel would then think that it would be a two-year case with, no doubt, return work for a considerable time. What is the estimate for the American case? Four months. A jury was chosen in a single day out of a jury panel of 100 and the case is now well under way.
	That raises the question: why do trials in this country in this type of case take such a long time and cost so much? Your Lordships will recall the Jubilee Line trial with six defendants. It collapsed after 18 months—sickness and jury problems, lengthy delays and disruption dogged the proceedings so much that a fair trial became impossible.
	I do not believe that it is the fault of the jury or the jury system. From experience, I know that if we were to maintain the same procedures as we had then in a trial before a single judge, not much would be gained. It is the procedures, which are hoary with age, that require to be looked at with a fresh eye. A criminal trial is deemed to commence when the jury is sworn and put in charge of the defendants. Everything that has gone before is regarded as a mere preliminary. In my view, a significant part of the trial should be completed before the jury is ever chosen and the calling of oral evidence begins. That is in accord with the Lord Chief Justice's introduction on 22 March last year of a protocol for the control and management of heavy fraud and other complex cases.
	The noble and learned Lord referred to that in the debate on the previous amendment. From the point of view of this amendment, it was interesting to hear him say that it would be appropriate to have some time to see whether that protocol works. The proposal to abolish jury trials before the protocol has had the slightest chance of proving its worth is entirely premature. From what the noble and learned Lord said a moment ago, he might agree. The protocol gives guidance on case management, disclosure, abuse of process, and so on. It has the advantage of being flexible and can be changed from time to time as practice develops. However, the protocol does not have any statutory backing and cannot change the substantive law.
	The purpose of my amendment is to create specific criminal procedure rules for complex fraud cases. It may be said by the noble and learned Lord that the Criminal Procedure Rules Committee already has power to make special provision in special types of cases. It seems to me that the complex fraud case requires rules of its own so that special procedures can be brought in. If those rules are brought into being, they will ensure that the issues are completely clear and open prior to the trial before the jury. No more would the defence hug to itself the nature of its defence and fail to disclose it. There should be a statement of case by both sides, agreement of facts and documents and disposal of all the issues which otherwise clutter up and delay the trial before the jury.
	I consider it important that there should be a statutory framework for the indications of sentence by the trial judge on a plea of guilty. That is normally called plea bargaining. In no other case can there be so much saving of public money and court time than in these fraud cases which take so long. The process of plea bargaining has historically in this country been in disrepute on the basis that it places too much pressure on an innocent man to plead guilty and to settle for a lesser sentence. But there are, and always have been, considerable negotiations prior to trial between counsel on both sides as to the specific charges and the factual basis of a plea of guilty if one is tendered. So there is already a degree of plea bargaining in the system, and has been for as long as I can remember.
	However, indications of sentence are not done openly. In my experience, indications of sentence have always been made. In the old days, the judge's clerk was the important conduit of information, but hints and winks give rise to misunderstanding. The climate has now changed completely. I look for a more open and transparent system. In the case of Goodyear in April of last year, a five-judge court of the Court of Appeal headed by the Lord Chief Justice and the Deputy Lord Chief Justice said:
	"We cannot, and do not seek to, water down the essential principle that the defendant's plea must always be made voluntarily and free from any improper pressure. On closer analysis, however, we cannot discern any clash between this principle, and a process by which the defendant personally may instruct his counsel to seek an indication from the judge of his current view of the maximum sentence which will be imposed on the defendant. In effect, this simply substitutes the defendant's legitimate reliance on counsel's assessment of the likely sentence with the more accurate indication provided by the judge himself".
	So the climate has changed dramatically and plea bargaining involving the judge is now countenanced by the Court of Appeal. It seems to me that it would be right and proper, particularly for this type of case, to introduce a statutory framework.
	With regard to procedures at trial, the amendment sets out significant procedural reforms. Juries are vetted now for their criminal records and, in relation to terrorist offences, by the security services. Questions are asked frequently of jurors where there might be bias. I recall the case of Shankland and Hancock, miners in the miners' strike, and the death of a taxi driver as a result of a concrete block being thrown over a bridge. I recall the late and lamented Lord Williams of Mostyn on behalf of the defence asking the judge whether he could exclude anyone from the jury who was related to taxi drivers. For the prosecution, I said that I was not seeking to remove people who were related to miners, so we got on with it.
	The point is that there always has been an attempt to see whether there is any inbuilt bias. I see no reason why in a fraud case inquiries cannot properly be made of the jury panel as to basic literacy, numeracy and familiarity with the English language, depending upon the nature of the case. Indeed, I note that the consultation paper put out by the Government in 1998 envisaged jury vetting in this type of case, to see whether the jury will understand. At the moment, the only check is if a juryman stumbles when he takes the oath—frequently, he will then be asked by the judge to excuse himself if the case involves a lot of documents. There is no other opportunity for testing the competence of the juror. Noble Lords will see that I have therefore included in this amendment a provision to consider the vetting of juries.
	The order of speeches in a criminal trial dates back to Lord Denman's Act—to Section 2 of the Criminal Procedure Act 1865. If the jury would grasp a complicated case by hearing counsel from both sides set out their stall at the beginning, there is no reason why opening statements from both sides should not be made. That is thought to be heretical at the moment, but there is no reason why it should not happen, as it does in other common law countries. I also suggest in the amendment that there should be time for private consideration by the jury of all the documents, opening statements, agreed facts and so on. There is no reason why the jury should be plunged directly into the oral evidence.
	I also refer to questioning by the jury. Questions can and frequently are asked by juries now, but they are in no way encouraged. There is almost no case law on this. I think that there is a brief reference in an 1896 case, but only in one modern case was it raised as a ground of appeal—the case of Barnes in 1991. In that case, the judge was dissatisfied with the cross-examination of the defendant by prosecuting counsel and invited the jury to formulate additional questions. Lord Justice Russell, in the Court of Appeal, said that the practice of inviting juries to ask questions was generally speaking to be deprecated, because they are not familiar with the rules about evidence and might ask questions which would be difficult to deal with. The appeal failed, but the case turned on its own facts. In a complex case, by contrast, surely it would be sensible to put aside time to answer queries raised formally by the jury at any stage of the trial. Communication is a good thing. Their questions might well throw up misunderstandings that can be quickly cleared up or points that can be answered by the evidence.
	I do not suggest that this amendment contains an exhaustive list of procedural improvements. A significant shortening of trials might arise from another quarter—the Government's other proposals gradually to reduce refresher fees to counsel as the days draw on. Before Third Reading, the Government might like to take time to consider the existing protocol that has been issued by the Lord Chief Justice—bearing in mind, as the noble and learned Lord the Attorney-General said, that it has not had time to work—backed by procedural rules that can make substantive changes to current procedures. I suggest that that is a better way forward. Before this Government make another of their never-ending attempts to abolish the fundamental principle of jury trials, they should see whether these less drastic reforms will bring the improvements in time and cost that they want and that anyone who is concerned with the efficient and proper dispatch of the processes of the criminal justice system also requires. I beg to move.

Lord Lyell of Markyate: My Lords, the noble Lord, Lord Thomas of Gresford, has said some constructive things. He introduces an important aspect, to which I am sure the noble and learned Lord the Attorney-General will give thought. The key to the solution to the problem of jury trials lies not in the jury but in the prosecution and the judge and in taking and keeping a firm grip on the case from start to finish.
	We have had many debates on the jury system. The key points in favour of the jury are its independence, the care with which it considers such cases and the confidence that it carries with the public. It is perfectly clear—it could hardly be clearer than from the Jubilee Line case, which seems to have set this particular hare running—that the problem when major and complex cases collapse, as, from time to time, they do, lies not with the jury but with the judge or the prosecutor.
	I grew up, in parliamentary terms, with the development of the Serious Fraud Office. I remember vividly the days when long and complex frauds were tried, even before the era of the fraud investigation groups which, for the first time, brought police, accountants and prosecutors—barristers—to work closely together. In the end, that was taken forward—very successfully, in my view—by the Serious Fraud Office. It is that fraud investigation group approach—that combination of professions—that is of the essence in successful prosecution of fraud. It was highly controversial from time to time during the late 1980s and early 1990s. There were one or two collapses and the unfortunate Serious Fraud Office was sometimes called the "serious farce office". That was mostly extremely unfair. It highlighted the fact that the kind of people whom you must prosecute are often very powerful people in their own right. They have made a great deal of money, often dishonestly, and they spend it fighting the case—as they are perfectly entitled to do—both in court and through the newspapers.
	I invite the noble and learned Lord the Attorney-General to backtrack. If we actually analyse how serious fraud cases have been tried during the past 15 years, we find that the great majority have been effectively tried. Juries are in no sense reluctant to convict in cases of serious fraud. In fact, conviction levels—if one pays attention to them—are actually higher than in the ordinary run of criminal cases. The main theme of my speech is that, when a case has gone wrong, it is nearly always, in fact I think always, the fault either of the prosecution—I say that kindly, because these are difficult cases to prosecute—or of the judge, or both.
	I saw a slight wrinkle on the brow of the noble and learned Lord the Attorney-General when I mentioned the Jubilee Line case, but I think that we are still waiting for the report—at least, the Library cannot find it—

Lord Goldsmith: My Lords, I am grateful to the noble and learned Lord for giving way. My brow did wrinkle—I apologise for wrinkling—simply because the noble and learned Lord suggested that it was the collapse of the Jubilee Line case that prompted the Government to implement Section 43 of the Criminal Justice Act 2003. I can assure him that it was not. It was passed in 2003 and the decision to implement it had been taken before the Jubilee Line case. I have never suggested, and I do not suggest, that the Jubilee Line case, which has particular features, is the reason or a justification for the measure. That is the reason for my wrinkle.

Lord Lyell of Markyate: My Lords, I am most grateful to the noble and learned Lord. Wrinkles are helpful: one should be sensitive to every mark and move in a debate. The noble and learned Lord is absolutely right. Although there was a great deal of reference by government to that after the Jubilee Line case—it certainly came out in the newspapers that one solution was going to be to abolish the jury—I will rapidly accept if he tells me so that it did not come from the Attorney-General's chambers. However, it certainly figured in newspaper reports at the time and the Jubilee Line case is an exact example of a case where no one could have suggested that it was the fault of the jury.
	The highest one could go—even this would be a bad point—would be to say that the fact that one has to explain things to the jury or that one has to argue things in the absence of the jury in some ways complicates the case, but I put it no higher than that. The Jubilee Line case, to have it on the record, was supposed to take 18 months. It was still going on after two years and the prosecution case had not even been concluded. In the last seven months of the case the jury got into court on only 13 out of 91 days. I take those figures from the Guardian newspaper and they may or may not be accurate, but that was what was stated in the public prints; it is quite instructive.
	Again I have made efforts and I look to the noble and learned Lord the Attorney-General to tell us when we are going to see the CPS Inspectorate's report on the case. One of the things that the noble and learned Lord the Lord Chancellor said at that time was that he was determined to put an end to fraud cases that took 18 months or longer. Will he in his winding-up speech tell us whether we can have an end to 12-month inquiries into collapsed cases? We are coming up to the anniversary of the collapse of the Jubilee Line case and we are waiting to hear what the CPS Inspectorate thinks about it and to have the opportunity to reflect on its analysis. I close on the key point, to which I return: for 10 years, from 1987 to 1997, I looked at every serious complex fraud case that collapsed. In every case it was a combination of over-complexity, as it was with the Jubilee Line case. The word on the street among my friends at the criminal Bar is that the essence of the Jubilee Line case was corruption and it was complicated by a complex addition of fraud charges. It could probably have been dealt with a great deal more expeditiously and simply.
	Mr Stephen Wooler and his colleagues will be reflecting on that matter and I am sure they will answer that point among others. The other point is that it is important to have a judge who is an expert in the field. The judge in that case was deeply respected and a fine ordinary criminal judge—by saying "ordinary criminal" I do not mean that that is any less clever-clever, or anything else, but it is different from having experience of long and complex fraud cases. She was invited to take on the case in her 69th year—her last case. In the management of such matters one has to be careful who one asks to do things and at what stage in their career, because the combination led to the problem. That is not new; it had happened before in one form or another in all of the serious complex cases that collapsed between 1987 and 1997. The blame should not be laid at the door of the juries, and our liberties, which depend so strongly on the jury, should not be swept aside.

Lord Kingsland: My Lords, I have received—

Lord Ackner: My Lords, perhaps I may intervene before the noble Lord, Lord Kingsland, speaks. I have one or two random points to make in regard to jury trial and the present situation. First, it would be totally unrealistic if we did not recognise that there was a perception among the minorities that one obtained a better category of justice through trial by judge and jury than by judge alone. There is a basis to that perception. Some may have an inbuilt, albeit perhaps very rare, bias against the defence. The professional judge can become case-hardened as a result of hearing the same defence over and over again, whereas the jury has not heard it before or has come to it with a greater understanding. Certainly, the jury does not run the risk of missing a good case because of the very small incidence in which it has care. I think this perception is particularly strong among foreigners who come to this country and among the minorities who are convinced that they stand a much better chance of a sympathetic hearing before a jury than before a judge alone.
	Another matter to which I wish to draw attention is the suggestion about plea bargaining. It is a long time since I was personally involved as chairman of the Bar Council, when I discussed this matter with the then Lord Chief Justice and the fact that the greatest degree to which a judge would permit a discussion was to say, "Win, lose or draw, the sentence is likely to be X", and that anything else ran the risk of putting pressure on the accused to accept what could so easily be put in front of him to speed up the process. It is highly dangerous—this has happened so frequently in other jurisdictions—to put too much weight on the sentence and the degree to which it can be reduced in order to speed up the process. It results in sloppy preparation and over-indictment, and it places the accused in a highly difficult position.

Lord McCluskey: My Lords, I hope I have been forgiven for my impertinence in coming from Scotland and speaking in this debate, not having spoken earlier, although there might be advantages in coming from a different jurisdiction with quite different rules. I am emboldened to speak by an experience that I had some 30 years ago, when I prosecuted what was then the longest fraud trial in Scotland in 1964 or 1965; indeed, it was the longest trial of any kind in Scotland for more than 30 years—it lasted 18 days. That is a rather different type of trial from the Jubilee Line or others mentioned by the noble Lord, Lord Thomas of Gresford.
	I looked with great care at Lord Roskill's report—I have no doubt that many of your Lordships are extremely familiar with it. According to my analysis of the perhaps 28 types of fraud that were specified and analysed in that report, almost all—I think 27 of them—depended on proving that someone had forged a signature, substituted a false document, destroyed documents or something of that kind. Ultimately, the point tends to be rather simple. For that type of reason, I support the principle behind this amendment proposed by the noble Lord, Lord Thomas.
	Even complex fraud cases turn on one or two fairly simple points which can be demonstrated with appropriate skills to juries. In Scotland, we are so confident in the capacity of jurors to pick up the point that we do not have opening speeches in jury trials. I have always argued that it is important for the jury to understand the case not at the beginning, but at the end of the trial. The speech can introduce only elements of prejudice. I would maintain that position even in relation to matters of fraud.
	In my time at the Bar, which now exceeds half a century, there have been enormous advances in the technical aids available. I have seen television used very skilfully, and other technical aids used which enable juries to understand what is going on. I have written about this final point previously. Lawyers who practise in front of courts have an immense amount to learn from television presenters. You can watch a television programme for 30 minutes, an hour, or an hour and a half, and can discover all that you need to know about Enron or any other big fraud case. It is time that lawyers, including judges, learnt the skills that journalists bring to the presentation to the public of complex matters on television. For those general reasons, I hope that your Lordships will forgive me for rising to support the principle behind the amendment.

Lord Kingsland: My Lords, I have received an oral assurance from the noble and learned Lord the Attorney-General that the Government will proceed to implement Section 43 of the Criminal Justice Act 2003 only by primary legislation. I am sure that the noble and learned Lord will confirm that on the Floor of the House. On that basis, we have not tabled an amendment to remove Section 43 from the 2003 Act. Had we done so, its text would have been very close to that of the noble Lord, Lord Thomas of Gresford, and justified for the reasons that the noble Lord has so comprehensively given.
	The noble and learned Lord the Attorney-General's assurance is consistent with the undertaking given to another place by the right honourable gentleman the Home Secretary, Mr Blunkett, at Third Reading of the Criminal Justice Bill. He said that if Section 43 remained on the face of the Bill, full consultation would take place with the opposition parties, followed by a proposal which would form part of subsequent primary legislation.
	I understand that the Government intend to bring forward in another place a single-issue Bill on jury trial in complex fraud cases as early as parliamentary time will allow. I hope that, before they take that decision, at least the decision about timing, they will reflect on a number of considerations.
	First, we have spent a great deal of time in your Lordships' House debating a new definition of fraud. One of the reasons why this review by the Law Commission has been undertaken is that the old definition was deeply unsatisfactory. It was over-complex and, in addition, not sufficiently comprehensive. Would it not be a good idea for the Government to give an opportunity for the new definition to take effect? It may be that the greater simplicity of the definition of "fraud" will be more easily understood by juries and will, therefore, shorten trials—which is the main purpose for which the noble and learned Lord has expressed concern about the continued existence of juries in complex fraud cases.
	Secondly, as the noble Lord, Lord Thomas of Gresford, said so effectively, let us have some more time to see what effect the protocol of the noble and learned Lord, Lord Woolf, will have; because that too may have a dramatic influence on the length of complex fraud trials.
	The evidence before us so far does not establish that the existence of juries in complex fraud cases lengthens those cases. I hope that, before the Government will consider bringing legislation before another place, the noble and learned Lord will engage in an examination of at least some of the major complex fraud cases that have taken place in the past two or three years, to try and determine exactly what role the jury plays. We know that the noble and learned Lord does not consider the problem to be the make-up of the jury—because he has expressed his view that having a jury of experts rather than laymen would contribute nothing to the solution. It is not the composition of the jury but the fact of the jury which is his problem. May I suggest that he looks at, say, a dozen cases that have taken place over the past two years, to establish what contribution the fact of the jury has made to the length of the case? We would all find that evidence enormously valuable.

Lord Goldsmith: My Lords, the amendment moved by the noble Lord, Lord Thomas of Gresford, would repeal a provision that was enacted two years ago and replace it with another which, as I shall explain, will add little or nothing to the law as it stands and would, in the Government's view, be ineffective in dealing with the problem presented by very long fraud trials.
	Section 43 of the Criminal Justice Act 2003 provides that in a small number of complex fraud cases, where strict statutory criteria—including the approval of the trial judge and the Lord Chief Justice—have been met, the trial may take place without a jury. The implementation of Section 43 was made subject to the unusual requirement of the affirmative resolution process of both Houses, explicitly an order to enable discussions to take place with the parties opposite about possible alternatives to trial by judge alone. I do not want to raise the temperature in the House by labouring the point too much, but the noble Lord, Lord Kingsland, knows well that I do not agree with him on the interpretation of what was said at the conclusion of that Bill. In particular, I do not agree that there was any undertaking that the implementation of Section 43 would only take place through primary legislation; quite the opposite. However, a year ago I chaired a seminar intended to be the forum for the discussions promised.
	Your Lordships may recall that last June, when I announced the Government's intention of seeking to implement Section 43, there was some discontent about the manner in which we had made good our undertaking again. I will make it clear: I do not and I have never accepted that discontent. Be that as it may, the point was raised again when the order was debated in Committee in another place. It therefore seemed desirable to have another attempt at engaging with the parties opposite. I have been happy to do that and a meeting took place on 25 January. I had hoped to be able to say that as a result of that meeting, agreement had been reached on the terms on which Section 43 of the Criminal Justice Act could be implemented. I put forward a number of possible modifications that the Government would have been content to make to the statutory arrangements, and there was some indication that these, taken together, might prove acceptable to the opposition parties. I very much regret that, to date, it has not proved possible for them to agree such a compromise.
	The noble Lord, Lord Thomas of Gresford, argues that trials could be reduced in length by special procedures of the kind set out in his amendment, which he considered would promote better case management. But much of what he proposes has already been done. Case management tools are already available in serious fraud cases. For example, in the type of serious or complex fraud we are discussing, a preparatory hearing under the Criminal Justice Act 1987 almost invariably will be held. In those circumstances, I do not understand what his proposal for management hearings for complex fraud case trials adds to what is already provided. Under the 1987 Act the judge already has extensive powers to regulate how the prosecution presents its case as well as powers to order the defence to identify its objections. Many measures are already in place to ensure better case management. They can be found in the Criminal Procedure Rules or in the last Lord Chief Justice's protocol for the control and management of heavy fraud and other complex criminal cases. Again, there they are.
	Not for a moment do I deny the importance of applying good case management tools. I am strongly in favour of that, and have said so on a number of occasions, but I waited to hear from the noble Lord, Lord Thomas of Gresford, which of the provisions in his amendment actually adds something new to rules which already exist, to powers which already exist, or to rule-making powers which already exist. He spent some time on the issue of indications of sentence, but as he himself has recognised, a five-man Court of Appeal—it is an important event when a five-man court sits specifically in order to consider making a change to practice—decided in Goodyear that sentence indications, on the application of the defendant, as the noble Lord's amendment says, should be possible. They so decided and to my certain knowledge—and no doubt to that of the noble Lord as well—it is now happening in courts up and down the country. There may be differences of view on whether it is a good idea, and I note the points made by the noble and learned Lord, Lord Ackner; I certainly do not think they are a bad thing. On the contrary, I agree with the noble Lord, Lord Thomas, that they are desirable, just as I agree it is desirable that, if possible, there should be agreements on schedules of relevant facts and issues, and that statements should be made by both sides. That is set out specifically in the protocol of the noble and learned Lord, Lord Woolf: there should be statements of case.
	The noble Lord, Lord Thomas, said it would be a good idea if the defendant made an opening statement. I have been in court when such things have happened. It is not regular, but nothing at the moment would prevent it taking place. So while I do not deny the desirability of good case management, nothing in this amendment adds to the powers that already exist. What is more, it might be harmful. If one appears to give specific powers in the case of serious fraud, that could cast doubt on whether powers already given to the committee are sufficient to allow it to make rules covering all criminal proceedings.
	The noble and learned Lord, Lord McCluskey, talked about lawyers becoming television presenters and presenting their cases in half or three-quarters of an hour. If the noble and learned Lord the Lord Chancellor were now in his place on the Woolsack, responsible as he is for the Legal Aid Fund, I do not doubt that he would be absolutely delighted at the prospect. So too might members of the public be delighted to see cases presented in that way. Again, I do not for a moment underestimate the desirability of the points made.
	However—this is the second objection—I do not believe that welcome though better case management is, it would be a complete solution in complex fraud trials. I have previously pointed out that one of my major concerns is that the effect of measures designed to reduce a case to manageable size may be that crucial evidence cannot be heard by the jury. How is case management achieved? Frequently, the judge requires a case to be severed, or the prosecution recognises that it must sever a case by taking out defendants or counts. In the Maxwell case, for example, although the prosecution, the judge and almost all defence counsel believed it would be best if all matters were heard together, the view was that this would be unmanageable before a jury, and so it did not happen.
	Where efforts are made to reduce the amount of evidence put before juries, the effect can be that the defendants do not face justice for the full extent of their criminality. In one well known case the defendant pleaded guilty to two out of 22 counts and received a non-custodial sentence. The trial judge had excluded a substantial body of evidence, not because it was irrelevant or inadmissible, but because it would be unimaginable for the jury, and would make the trial unacceptably long.

Lord Lyell of Markyate: My Lords, I am most grateful to the noble and learned Lord, who is referring to the Levitt case. I have the highest respect for the Lord Justice who tried that case, but it was an example of things not going as they should have done. Regrettably, it came to that rather unsatisfactory conclusion, but I am afraid it falls into the category of things going wrong because of the prosecution or the judge—or both. It fell fairly and squarely into that category. The noble and learned Lord the Attorney-General is making detailed points about the submissions of the noble Lord, Lord Thomas of Gresford, and I understand what he is getting at, but he is not grappling with the key point, which is whether it would be better to get rid of the jury.

Lord Goldsmith: My Lords, that is exactly my point. Having said that I do not, with respect, believe that the amendment of the noble Lord, Lord Thomas of Gresford, adds anything to the existing powers, my second point is that it does not solve the problem. You do not solve the problem of a small number of serious and complex fraud cases by cutting down the material the prosecution can put forward. This risks not presenting the full case to the jury. Much of the opposition to Section 43 rests on the principle that there is an inalienable right to trial by jury. The Government are committed to retaining jury trial in almost all Crown Court cases.
	The noble and learned Lord, Lord Ackner, made an important point about the confidence that certain parts of our community have in juries. I do not disagree with him about that, but they are not, I think, the people we are concerned with in this small number of serious complex fraud cases. The reality is that the overwhelming majority of criminal cases in this country are dealt with, perfectly ably, in a magistrates' court, either by lay justices or by professional judges without any jury present. I have some difficulty, in this context, in understanding the objection to judge-alone trial. I do not understand why the opponents in this category of case have so little faith in our judiciary. Single judges already make momentous decisions in civil cases; they are quite capable of making decisions about the guilt or innocence of defendants.

Lord Lyell of Markyate: My Lords, I am most grateful to the noble and learned Lord. I do not want to keep jumping up, but I am not sure whether the noble and learned Lord the Attorney-General has answered my noble friend on whether we are to have primary legislation before there is any attempt to do away with the jury in any part of serious fraud cases. My understanding, before this debate, was that what my noble friend Lord Kingsland said was indeed what was agreed regarding the jury. Therefore, there is an awful lot to be said in answer to the points that the noble and learned Lord the Attorney-General is putting forward. There are very real points to be made, but I assume that they will be made in future primary legislation, and not this afternoon.

Lord Goldsmith: My Lords, in a sense the noble and learned Lord, Lord Lyell of Markyate, is right. I shall come in a moment to what the Government are going to do. Having told the Opposition, who have brought the question of jury trial into the Fraud Bill, that I want to separate the two issues and that the Government intend to bring forward a stand-alone Bill to deal with those issues, I had not anticipated that we would have a debate this afternoon. But, entirely properly, the noble Lord, Lord Thomas, tabled an amendment and spoke to it in spirited terms, and other noble Lords contributed to the debate. Therefore, it is only right that I should say what the Government's position is, particularly as the noble and learned Lord and the noble Lord, Lord Kingsland, have asked me to reconsider.
	Parliament has already recognised that in certain cases the right to jury trial can be overridden by other considerations. Part 7 of the Criminal Justice Act 2003 contains—in addition to Section 43—provision for trial by judge alone in jury tampering cases. That is an exceptional case, but Parliament believed that it was right to take that step. We believe that it is very important that the criminal justice system is able properly to deal with white-collar crime as it can deal with blue-collar crime. We still believe that Section 43 is an important step in that direction. It would bring to an end the problem that in a handful of very complex fraud trials much of the evidence cannot even be put before the jury, and it would spare citizens the intolerable burden of sitting as jurors in such cases. It was not proposed lightly. This debate has been going on for 20 years. The fraud trials committee presided over by Lord Roskill argued as long ago as 1986 that trial by jury was unsatisfactory in serious fraud cases. There was a public consultation in 1998 which supported by two to one replacing jury trial in serious fraud cases. The same line was taken by Lord Justice Auld in his independent review in 2001.
	We demonstrated our willingness to consider modifications to the scheme provided for in Section 43 by entering with good faith into discussions with opposition parties. It is clear that there is no immediate prospect of those discussions bearing fruit and leading to a compromise position which delivers the necessary improvements to the efficacy of fraud trials. In those circumstances, it cannot be right to delay this modest but desirable Bill any longer. The Government, while remaining committed to the policy contained in Section 43, have taken the view that we need to separate this issue from the passage of the Fraud Bill. We therefore propose to bring forward fresh primary legislation to give effect to that policy as soon as parliamentary time allows rather than bringing forward an order giving effect to Section 43. No doubt when that Bill comes before the House, all the points that have been raised today and all the other points will be argued and debated. I have only responded a little in kind to the points that have been made. As it stands, the only amendment before the House is that of the noble Lord, Lord Thomas, which I believe in any event he will not press to a Division. I invite him to withdraw it.

Lord Kingsland: My Lords, before the noble and learned Lord sits down, I had understood, until the latter part of his speech, that his main objection to the existence of juries in complex fraud trials was the consequence for their existence of the length of those trials; in other words, if we remove juries, trials will be shorter. But towards the end of the noble and learned Lord's speech, he seemed to indicate a different motive. He seemed to suggest that evidence could be brought before a single judge which could not be brought before a jury; in other words, evidence that would be admissible before a single judge would be inadmissible before a jury—I am interpreting what the noble and learned Lord said and I want to be clear about it—and the consequence of that would be a greater conviction rate in fraud trials.

Lord Goldsmith: My Lords, I certainly was not suggesting any difference in the admissibility of evidence. The point that I have made is not new at all. I will illustrate it via the Maxwell prosecution, to which I made reference before. The trial judge then, who is in fact the present Lord Chief Justice, said:
	"The prosecution and most of the defence are agreed that, were it practicable, all the counts should be the subject matter of a single trial. All are agreed that the length and complexity of such a trial would far outstrip the capacity of any jury".
	The result was that he then split the case into smaller portions so that each could go before a jury. However, following acquittals in the first trial, another judge, Mr Justice Buckley, who was due to hear the second trial, stayed the proceedings on the ground of abuse of process. The end result was that it was not possible to put all the evidence before a single trial—it was put forward in smaller parts—while the rest was not tried either.

Lord Lyell of Markyate: My Lords, if I may intervene before the noble and learned Lord sits down, he will not be surprised to learn that I know a good deal about that case and understand where he is coming from. Yet the matter will be the subject of serious debate and I might ask to see him privately, since there are some aspects which might be better not debated. It raises serious questions to which there are serious answers.

Lord Goldsmith: My Lords, I was responding to the noble Lord, Lord Kingsland.

Lord Williams of Elvel: My Lords, before the noble Lord speaks again, I remind him that we are on Report.

Lord Kingsland: That is true, my Lords; on the other hand, a new factor has been introduced by a statement of the Home Secretary yesterday, which throws an entirely different light on the nature of the Bill and requires us to consider a totally fresh matter, new in this debate—that is, perhaps, why there have been an unusually large number of interventions on Report. I apologise for their number, but submit that they have been necessary, for the reasons given.
	I make one further short observation to the noble and learned Lord, in the hope of encouraging a response. The Attorney-General's response to my last intervention clarifies something which had been a mystery to me ever since the seminar that he held in January 2005. In that seminar, the noble and learned Lord, Lord Phillips of Worth Matravers, said that he thought that there might be circumstances in which trial by a single judge in complex fraud cases would be desirable, but that the noble and learned Lord the Attorney-General should be under no illusions about shortening trials by that means. If the Lord Chief Justice—as the noble and learned Lord, Lord Phillips of Worth Matravers, is now—is right about that, a new Bill in another place, whatever else its consequences might be, will not cut the cost of fraud trials.

Lord Goldsmith: My Lords, I thought that I had already sat down, so I invite the noble Lord, Lord Thomas, to withdraw his amendment. I do not agree with the noble Lord, Lord Kingsland, but we will come back to the matter when the new Bill arrives in your Lordships' House.

Lord Thomas of Gresford: My Lords, I am grateful to all your Lordships who have spoken in this debate. I can tell the noble and learned Lord, Lord McCluskey, that I recall there being a brass plaque in the second assize court of the old Stafford assizes which commemorated the longest trial in England up to that date. That was 17 days, which slightly beats the record of 18 days to which he referred.
	The noble and learned Lord the Attorney-General takes issue with me on a number of points. First, my amendment was set down at the beginning of last week, but on Friday I learnt from him that there was no intention of seeking to proceed with the orders under Section 43. It seems to me that I am entitled to put this amendment forward and to have it debated as it has been. I have delayed the passage of this Bill by one hour in so doing.
	The second issue that the noble and learned Lord mentioned is that there is nothing new in the amendment. When the Criminal Procedure Rules that are now in place were formulated following the Courts Act 2003, they were not novel. They sought to put together the best practice, so that the best practice would be available for all sorts of Crown trials. In putting forward the amendment, I am seeking to demonstrate best practice in fraud trials. What framework is best suited for complex fraud cases? What is the best framework that we can employ to prevent the length and the expense of fraud trials, which have not been the best part of the criminal justice process over the past few years?
	There are novel points in the amendment—for example, giving statutory force to the protocol of the Lord Chief Justice. There is a lot to be said for the protocol. It is flexible. There is also a lot to be said for having behind the protocol a steady, firm framework, from which judges who are trying these cases can derive the way in which they propose to manage their cases.
	There are also references to the way in which a jury operates. Questioning and the ability to retire to consider documents have not been tried, so far as I know, in this country. Electronic presentation of evidence does occur. Oddly, no one has got on to the limitation of prolix cross-examination. That is important and should have statutory backing so that the judge can prevent counsel from going on day after day. I hope that your Lordships appreciate that I am seeking to produce a cost-effective and justice-effective system. I am doing so from experience. I do not say that the amendment is perfect; I do not say that it is all new. But it is to my mind a better way of going about things than abolishing the principle—and it is a principle—that a person should be tried by his peers, whether in a complex fraud case or whatever. The jury principle is fundamental to the justice system of this country and, as the noble and learned Lord, Lord Ackner, said, it is a system that commands the respect of all members of society.
	As the noble and learned Lord has indicated, I do not propose to press the amendment at this stage. I ask him to think about it before Third Reading and I also ask him to consider the position if he brings forward a fresh Bill. I suggest that there should be a delay to allow the protocol to operate and to see how it works in practice before any primary legislation to abolish juries is brought before us again. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 15 [Commencement and extent]:
	[Amendments Nos. 5 and 6 not moved.]
	Schedule 1 [Minor and consequential amendments]:
	[Amendments Nos. 7 to 10 not moved.]
	Schedule 2 [Transitional provisions and savings]:
	[Amendments Nos. 11 to 14 not moved.]
	Schedule 3 [Repeals and revocations]:
	[Amendments Nos. 15 and 16 not moved.]

BBC: White Paper

Lord Davies of Oldham: My Lords, with the leave of the House, I should like to repeat a Statement. The Statement is as follows:
	"I am today publishing a White Paper on the future of the BBC entitled A Public Service for All: the BBC in the Digital Age. It does exactly what that describes.
	"We live in an era of change. In broadcasting, new technologies are leading to vastly more television and radio channels and new media services. The BBC's charter needs to create a BBC strong enough to thrive in the new environment and flexible enough to adapt to new challenges. Over 70 per cent of households now have digital television. As digital delivers ever more choice, some describe the BBC as an anachronism. The Government disagree. More importantly, the British public disagree. Our unprecedented engagement with the people of this country—10,000 of whom wrote to us—has shown that people right across the country want a strong BBC, independent of government, and Parliament, and responsive to public wishes. The new charter gives the public the BBC that they want.
	"The Reithian principles to 'inform, educate and entertain' will be maintained, but we will give audiences and competitors greater clarity about what this means in practice. We will give the BBC six new purposes: sustaining citizenship; promoting education; stimulating creativity; reflecting the identity of the UK's nations, regions and communities; bringing the world to the UK and the UK to the world; and building digital Britain, where the BBC will act as a trusted guide.
	"There was strong public support for this. At the same time, licence fee payers told us it all sounded a bit worthy. What they cared about most was getting BBC programmes that they wanted to watch and listen to. So the White Paper makes entertainment central to the BBC's mission. The BBC should continue to take fun seriously, engraining entertainment into its services. This is not about writing the BBC a blank cheque or chasing ratings through copy-cat programming. It is about ensuring that the BBC delivers what licence fee payers deserve: quality and distinctiveness.
	"But the BBC's governance structure has become anachronistic. The BBC needs a new form of accountability to licence fee payers, as the BBC's shareholders. Our new arrangements will make the BBC closer to the people who pay for it and more accountable to them. In a step change for the BBC's governance, we will abolish the BBC governors and replace them with two new bodies: the BBC Trust and a separate executive board. The trust will be the licence fee payer's voice. It will act as a proxy for the BBC's shareholders, making it the first public interest body on this scale the country has ever seen. There has been nothing like it before.
	"The trust will oversee the executive board, whose own job will be to run the BBC's services. There will be clear separation of responsibilities between the trust and executive board. Although the trust will be the sovereign body of the BBC—its word will be final—the new charter and agreement will prevent it doing the executive's job. This is critical to maintaining the objectivity required to generate public confidence. This truly is a step change in the governance and regulation of the BBC. It is a unique solution for a unique organisation in unique circumstances.
	"An important part of getting the best programmes to the screen is competition for quality programmes. The White Paper requires the BBC to operate a commissioning system which balances in-house production of the scale necessary to deliver the BBC's wider public service role with encouraging competition for quality between in-house, independent and external producers. This new 'window of creative competition' should result in the independent quota of 25 per cent becoming genuinely a floor, and not a ceiling.
	"I repeat our welcome in principle for the BBC's proposals to move a significant amount of production to north-west England, helping to ensure that the licence fee is used as venture capital for the whole nation's creativity. The trust will need to satisfy itself that the plans represent value for money on behalf of the licence fee payer.
	"The BBC will continue as the cornerstone of public service broadcasting. We are equally committed to sustaining a dynamic commercial sector. We are putting in place a 'triple lock' system to ensure the highest standards of accountability. First, the trust will issue licences to the executive board for running each BBC service. Secondly, BBC content will have to have distinctive characteristics, such as being original, of high quality, challenging or innovative. Thirdly, a public value test will be applied to all new BBC services or significant changes to existing services.
	"Responding to concerns raised on the Green Paper, I am happy to clarify that whenever the trust carries out a public value test, Ofcom will provide the market impact assessment to guarantee rigour and ensure wider public confidence. We will also put in place a new duty on the trust to have regard to competition issues; ex ante codes in specific areas that have the potential to raise competition concerns; an overhauled fair trading regime; and a fair, transparent complaints system.
	"The White Paper also confirms that the BBC will be fully licence fee funded for the next charter. There will be future reviews into the scope for other methods of funding the BBC beyond 2016 and the possibility of distributing public funding—including licence fee money—beyond the BBC.
	"The process of deciding the next licence fee settlement has started. Licence fee payers and industry will help form our conclusions. We will expect the BBC to achieve a large part of its funding through self-help and the trust will need to make tough decisions about how resources are allocated within the boundaries of the settlement. To help the trust exercise stewardship of the licence fee, the relationship between the BBC and the National Audit Office will be strengthened within the existing arrangements.
	"Despite past predictions, public service broadcasting, led by the BBC, remains the bedrock of today's media. If it is to thrive in the digital age, the BBC must remain future-proof and politician-proof. We are optimists about the long-term future of the BBC, but it cannot take its position for granted. It must develop its role over the next 10 years, strengthening its accountability, bringing in new generations of viewers and listeners and building a consensus around the value of its place in Britain. The White Paper gives it the means to build that consensus and I commend it to the House".
	My Lords, that concludes the Statement.

Viscount Astor: My Lords, I thank the Minister for repeating the Statement. The BBC is a unique, much loved and much cherished institution. It stands out as a beacon of excellence, across the country and across the world. It is incumbent on us to ensure that the BBC we pass on to future generations is equipped to flourish in the decades ahead. All over the globe people turn to the BBC for an independent view of world events. The Conservative Party is committed to ensuring the future of the BBC and that it remains the best public service broadcaster in the world.
	That is why this White Paper is somewhat of a disappointment. It singularly fails to meet the main challenges that now face the BBC. It was supposed to provide us with a springboard to the new digital age, but it is simply not fit for the purpose. It goes only halfway and will not last for the 10 years of the new charter and agreement. Digital television, broadband, the internet, podcasting and on-demand viewing are transforming the world in which the BBC operates, and will change for ever the future of public service television in this country.
	It is so important that the BBC, which is bound by the highest standards of quality, impartiality and integrity, makes decisions in the interest of the public, and not in the interests of Ministers and the Government. That is why the BBC needs a proper, independent regulator, something missing from the Government's proposal. Why is Ofcom able to regulate every other broadcaster in this country, but not the BBC?
	The Government have rejected almost every proposal of the all-party House of Lords Select Committee on the BBC Charter Review, chaired by my noble friend Lord Fowler. They have rejected the case for the BBC to be established by Act of Parliament, making it accountable to Parliament and not just to a department of the Government. Instead, we have the BBC trust and executive board proposed by the Secretary of State, but they are really no more than a separate set of BBC governors at another building, with twice the cost and twice the number of appointments to make. It ultimately fails adequately to separate governance and regulation. That is what is important. We must have a system in place whereby those regulating content, impartiality and standards of the BBC see themselves as responsible to the licence fee payer and to Parliament, not just to the Government and the Secretary of State.
	The BBC is a unique organisation in a unique position, and because of that we must ensure that that position is not abused to the detriment of other broadcasters or, indeed, the viewing public. We cannot have a situation where a publicly funded BBC is allowed to outspend and outgun its competitors with the result that it prevents innovation and stifles competition. The public value test is a good concept, but Ofcom should be involved with the test, not just limited to producing a market impact assessment.
	We agree that funding by the licence fee is still the best way forward for the BBC. But we know that there will be an unprecedented increase in the funding of the BBC. We shall see an increase from about £3 billion to about £5 billion by 2013. Why does the settlement require such an increase? I am afraid that the deft hand of the Chancellor of Exchequer is at play. The Government are using the charter renewal as a Trojan horse to pay for their policy of digital switchover. The settlement is purely a mechanism to fund government policy. In the process, the Chancellor will grab between £2 billion and £5 billion as a result of selling off the freed up analogue spectrum after switchover is complete in 2012. He has a history. He made £27 billion from the sell-off of the 3G networks, and is looking to repeat the exercise. That will fall on the viewing public and licence fee payers. In an example of the stealthiest of stealth taxes, the Chancellor hopes that by using the word "spectrum", the unsuspecting public will not realise that the Chancellor and the Government have imposed the first new Labour television tax.
	Now that it is official that the licence fee is a tax, the National Audit Office should be involved in scrutinising licence fee bids. The cost of switchover is forcing the increase in the licence fee to an eventual £180 a year, which will hit the poorest in Britain and those on low or fixed incomes. What help will the Government give to those who cannot afford the cost of digital switchover? Indeed, what help will be given to those who cannot receive digital television in the future?
	The White Paper, the draft Royal charter and agreement, and the regulatory impact assessment will take careful reading. I cannot hope to deal with the many issues today. I shall just say that I am glad that "training" still features strongly in the BBC plans. I am disappointed that the provision of news is not one of the six purposes, or even the seventh purpose, outlined by the Secretary of State.
	The BBC is one of the great brands of the world. That brand combined with continued quality programme making will allow the BBC to compete and thrive in the varied and many ways of delivering content to consumers. We want to ensure a future for a stronger and independent BBC. The Government have undermined that by putting at risk the public confidence in the licence fee and failing to ensure good governance and the integrity of the institution.

Lord Clement-Jones: My Lords, we on these Benches believe that the test of the White Paper must be whether or not it guarantees a strong, independent and securely funded BBC that is equipped to meet the challenges of the digital age, strengthened in its independence from government and set to remain an institution held in high regard throughout the world. I, too, thank the Minister for repeating the Statement made in the other place.
	There is much in the White Paper to commend. There is a clear statement of purposes for the BBC: emphasising quality, not ratings; increased opportunities for independent production through the window of creative competition—or WOC, as we shall all come to call it; greater public scrutiny of BBC finances under the National Audit Office; continuation of funding via the licence fee; and the charter lasting 10 years to ensure long-term planning.
	But we have some concerns. The first is about regulation. While a proposed BBC trust is an improvement on the BBC governors, it is still not a totally independent regulator if it is to have strategic oversight over BBC decisions. It is even described in the White Paper as the sovereign body within the BBC. Clearly it is still part of the BBC. Governance is not being separated from regulation.
	We welcome the new market framework. The new proposals are tougher than at present. Ofcom's role in assessing market impact is welcome. But the BBC will remain its own judge and jury when it introduces a public value test for new services. That is also true in terms of ex ante rules. Is there not a need for a clear process for appeals to a truly independent authority? Should not there be a single, new, independent regulator for all public service broadcasters; namely, a public service broadcasting commission? It is one of the options rejected by the Government.
	On the question of demands made on the BBC, is not there a danger that the BBC will be buried under innumerable government targets? It is slightly concerning that the last charter and agreement had between them 43 clauses. The new charter and agreement have between them 175 clauses—more than a fourfold increase. Given those demands, will the Government rule out a raid on licence fee payers to fund all those demands? For instance, do they agree that targeted assistance to help disadvantaged households to switch to digital should be paid out of general taxation? Should not the regeneration benefits, as distinct from programming improvements from the BBC's move to Manchester, be paid by the Manchester authorities and not TV viewers nationwide? Should not the NAO be asked to comment on proposals for the level of the licence fee?
	Finally, the BBC does not operate in isolation. Does the Minister agree that competition is good for the BBC? If so, will the Government make a firm commitment to preserve the plurality of public service broadcasting, for example, by protecting the future of Channel 4? As regards the new public purposes for the BBC, we welcome the clearer statement of purposes. However, we seek reassurance that the task of sustaining citizenship will not be a green light for would-be censors to seek to ensure that every minute of BBC output conforms to their own view of citizenship and society.
	On these Benches, we believe that the BBC should continue to contribute to democratic debate and an understanding of Parliament and the UK political system. It should continue its commitment to the nations and regions and promote local television services. It should continue thoroughly to train journalists and to ensure that its current affairs programming is accurate and impartial. But by outlining those duties for the BBC in the charter, we must not open the door for lobby groups to breach a fundamental rule of broadcasting; namely, editorial independence.
	For 80 years the BBC has been the cornerstone of public service broadcasting. While not perfect, on these Benches we believe that the White Paper proposals should ensure that into the digital era the BBC will continue to play an important role in all our lives.

Lord Davies of Oldham: My Lords, I am grateful for both contributions from the Opposition Front Benches. They indicate the broad support in the country for a strong, independent and flourishing BBC. They recognise not only the BBC's unique role in the country but the extent to which it has helped to make British broadcasting the envy of the world. With the White Paper, our intention is to continue those excellent achievements. It is clear that we face great challenges in the new digital age. We appreciate the fact that the transfer to digital for all viewers is a major operation and will take a considerable time—it will be done gradually through the various regions of transmission. It is a proper obligation on the BBC to extend what has always been a universal service to all those who receive the universal signal. The intent is to create exactly the circumstances for that.
	It is also right that the digital transfer should be a broadcasting cost. Therefore, we expect help to be given to those who find difficulty through limited economic circumstances in meeting the costs of digital transfer. We appreciate that the over-75s will need additional help, as they do at present. Other categories of our fellow citizens will also need help. This is a broadcasting matter, and the BBC has always served the nation as a universal provider. It is therefore right that we have located switchover within its responsibilities.
	I confirm both to the noble Viscount, Lord Astor, and to the noble Lord, Lord Clement-Jones, who reinforced these points, that the White Paper envisages more effective competition for submission of programmes to the BBC. At present, as we all know, there is an objective of at least 25 per cent, which for independent production units has tended to be a ceiling rather than a floor. Under the new arrangements, we are determined that fresh provision will be made to guarantee that that percentage is increased. The noble Viscount, Lord Astor, and the noble Lord, Lord Clement-Jones, also emphasised the crucial role that the BBC has always played in training, given its expertise within the industry. We will expect the BBC to continue to fulfil that role, which we have identified as an important contribution to the whole industry.
	The suggestion of the noble Viscount, Lord Astor, that the Government had not listened and taken note of the Select Committee under the noble Lord, Lord Fowler—who will no doubt take the opportunity to question me further in a moment—was a little unfair. We took note of that report and agreed with it on a number of areas, as the White Paper reflects. The report emphasised that funding should be via the licence fee and that the BBC should ensure that activities are carried out to the highest standards of probity, propriety and value for money, and we are putting in place exactly the structures that guarantee that. I recognise that there is a point of collision between the recommendation of the Select Committee and the position of the Government—it was voiced in a recent debate on the governance of the BBC. However, the Government stay wedded to the concept that the trust model will preserve the necessary independence and be the guardian of the interests of licence fee payers, while at the same time ensuring that the executive functions are carried out by the executive board. We think that we have that structure right.
	The noble Lord, Lord Clement-Jones, referred to Channel 4. We are seeking to carry out an evaluation of its position. There is no doubt that Channel 4 has played a valuable part in British television history. It faces new challenges in the multi-channel age, as we all recognise. We also recognise that, given its unique role in public service broadcasting, where it is not in receipt of public funds, its prospects for the future need careful consideration. That is provided for in the White Paper.
	I am grateful for the questions that have been raised. Apart from on the fundamental issue of governance, I think that it will be recognised that there is considerable congruence of opinion in this House on the future of the BBC.

Lord Fowler: My Lords, I agree with what the Minister says about the high quality of the BBC, as did the Select Committee—we very much included the BBC World Service in that. Does he not recognise that there is a range of controversial issues, from the two-board structure now being proposed to the costs being added by the Government to the licence fee? Is it not a fact that Parliament will be unable to change anything in this White Paper? The decisions have been made and this White Paper basically sets out a deal between the Secretary of State and the chairman of the BBC. Why do not the Government open up the process to proper parliamentary scrutiny and put the BBC on a statutory basis, as Select Committees in both the Commons and the Lords have proposed?

Lord Davies of Oldham: My Lords, that is a fundamental point, which the Government considered very carefully, because, as the noble Lord said, not only the Select Committee that he chairs with such distinction but the House of Commons Select Committee emphasised it. In our extensive consultation with the British public, we did not find that that recommendation was supported. We must recognise the obvious fact that the public are, rightly, concerned that public service broadcasting—the BBC—should be independent from political interference. The problem with the concept of putting the BBC under statute is that, by definition, that would leave open the possibility of fairly frequent challenges or amendments to the statute being tabled, involving considerable political debate about the structure and constitution of the BBC. We believe that the public value the concept of the charter, which guarantees the BBC's independence, structure and commitments over a decade, which is something that statute could never do. Of course the Government take seriously representations from informed Select Committees, especially when the two Houses agree, but it should also be recognised that the fullest consultation took place before the White Paper and, on this crucial issue of principle, noble Lords must recognise that the public may beg to differ.

Lord Barnett: My Lords, as a former vice-chairman of the BBC's board of governors, I am happy to welcome the White Paper and the statement in it that the Government see the BBC as a bedrock of today's media. However, I have two brief questions, given the short time available. First, can my noble friend tell me why calling the governors "trustees" and the management board an "executive" will make them, as is stated, closer to the people and more accountable? Secondly, do the Government accept the Office for National Statistics ruling that the licence fee is now a tax and that the expenditure of the BBC is therefore public expenditure accountable to the National Audit Office and, therefore, to Parliament? Or do they depend on the EU ruling, mentioned in the White Paper, that it is state aid rather than taxation?

Lord Davies of Oldham: My Lords, the concept of the trustee is different from the concept of the governors of the BBC. The word "trustee" is used because those people are in trust to the nation—the nation being represented by licence fee payers. That is why there is a distinct separation between the role of the trustees and the role of the executive body, which is clearly defined in the White Paper and a product of public concern voiced over the years. I am mindful of the fact that my noble friend was vice-chairman of the BBC for a distinguished period. He will recall that, from time to time, anxieties have been expressed that the relationship between the executive and the board of governors has been too close to enjoy total public confidence in certain controversial circumstances. The new structure separates them. We recognise the ONS definition in terms of public accounting, but we do not see that that makes any significant difference to how the BBC, first, receives its money and, secondly, is accountable for how it is used.

Baroness Howe of Idlicote: My Lords, I am sure that we all echo what has been said about the respect we have for the BBC and its tremendous service to this nation and beyond. I would like to follow up two quick points. Citizenship and education are very good; an absolute plus. If I may say so, others on the Select Committee will agree with the idea that entertainment is to be central still—maybe not over the top, but basic entertainment is part of the role. My questions are about the additional forms of help for the elderly. If we are going to be charging for spectrum, which up to now has been taken for granted, surely it will be difficult for the BBC. Of course it has responsibility for a great deal of the switchover, but what about the business of the special extra help? I know that Ofcom has some role there.
	My second point is about online competition. As we all know, everything is being viewed on all sorts of different instruments. Online does not appear to be mentioned, so will the Minister say a little more?

Lord Davies of Oldham: My Lords, I am grateful to the noble Baroness. A pilot study is being conducted to look at the nature of support that some categories of licence-payers will need in the digital switchover period. To take the most obvious point, not everyone will feel able to connect up a switchover box to operate the remote control and get themselves clearly acquainted with the device that they are now possessing without help. One does not want to be demeaning at all to one's fellow citizens so I am merely reflecting the facts that not all of us are necessarily technologically well equipped and that difficulties occur. We are looking at ways in which we will be helping people. That will need to be personal help; it will be a question not just of supplying equipment but of actual help in getting people started so that they are masters of their own television receiver and can work it. We are carrying out pilot studies; there is a cost involved—that goes without saying. We think that that is part of the switchover cost built into the claims with regard to the licence fee.
	On the second point that the noble Baroness identified in terms of the BBC's broader objectives, I take on her point quite straightforwardly. It is the case that the BBC in order to be fit for purpose in the new technological age has to be as quick on its feet as anyone else in terms of innovation. That is why part of the demands made in relationship to a licence fee that extends over the next decade is a recognition of the technological and research costs involved in the BBC being alert to those changes.
	The BBC has a good record in those terms in the recent past. It is expected that it should not fall behind innovatory developments in broadcasting technology. In our discussions with regard on the licence fee, which will be very fraught and without doubt very forthright, there is no doubt that both the Government and the BBC will recognise that the technological dimension is of importance.

Baroness Bonham-Carter of Yarnbury: My Lords, the Minister has acknowledged the need to look into Channel 4's future. Will the Government agree that after analogue switchoff both the BBC and Channel 4 will be free from digital spectrum charging?

Lord Davies of Oldham: My Lords, we have not committed ourselves to that position yet. Let me say that spectrum charging is part of the warp and weft of broadcasting at the present time. The noble Baroness is indicating that in a particular area we should make special and particular arrangements. We have not reached final decisions on that position yet. I hear what the noble Baroness says: with the increase of competition for those positions there is no doubt that the question of the price and charging becomes of increasing importance as the years go by.

Lord Sheldon: My Lords, one of the points that my right honourable friend made was the commitment to exclude political interference, which is basic to the future of the BBC. The role of the trustees is important and it is going to issue licenses for the running of each of the BBC services. What is going to be the basis of those licenses; will they be the result of agreements between the trust and the executive board?

Lord Davies of Oldham: My Lords, my noble friend is right that the service licences will be an important part of the way in which the BBC is run and also rendered accountable. We intend to make the service licenses transparent so that each service will know what is expected of it and the demands on it and the public will be aware of its obligation too. That crucial role relates to the trust in terms of the broad supervision of these licenses. They have not day-to-day supervision of programmes but agreement to the broad terms of the licence and supervision that they adhere to.

Lord Maxton: My Lords, I welcome the Government's commitment to the BBC and the commitment in the White Paper and to its funding by the licence fee. Although there are faults in the White Paper, in general terms we have to accept that. My concern is that there is not sufficient analysis in the White Paper of the future technological development that is taking place—and will take place—and the BBC's role within it. Does my noble friend agree that there are parts of the White Paper that could limit the BBC's creative and technological development by placing too much power in the hands of Ofcom?

Lord Davies of Oldham: My Lords, I do not think so. We have a proper balance between the freedom of the BBC to innovate and develop its services, the overall responsibility of the trustees and the necessary position of Ofcom when it comes to market evaluation of the development of new services by the BBC. The latter point must be right when we are looking at the interface between the BBC and commercial ventures. That is a framework within which we tend to operate. The only limiting factor to which my noble friend could point in those terms is that the BBC might obtain somewhat fewer resources for investment in the technological future because some of its services are subject to a competitive market as far as Ofcom is concerned and others may win out in that argument. That area of competition is healthy for the BBC.

Lord Crickhowell: My Lords, the central issues that have emerged this afternoon are the independence of the BBC and the role of Parliament. My noble friend Lord Astor said that it was incumbent on us to ensure that the BBC remained an outstanding broadcaster, but Parliament is to have no role in that. The so-called White Paper is an announcement of a deal done between the Government and the chairman of the BBC. Parliament will have no opportunity to alter that. The Government have ignored the advice of two Select Committees about the future role of Parliament. Does the Minister really stand by his defence of his position that the British public will think that a deal done between the chairman of the BBC and the Minister is a better defence of the BBC's independence than Parliament? It is an odd view of parliamentary democracy.

Lord Davies of Oldham: My Lords, the public have great confidence in the BBC, which has been operating under charter, not statute, throughout its years of existence. In order to sustain his contention, the noble Lord would have to establish that there is substantial public disquiet about the inability of Parliament to hold broadcasters to account. I do not believe that there is that disquiet. The Government's wide consultation up and down the country on governance found no such demand. Instead, they found that Parliament needed a greater role in its relationship with the BBC.
	It is not as if the BBC is free from political comment. I do not think that a day goes by without some aspect of the BBC being subject to some public comment that is often highly political and contentious. So it should be in a free society. But that is different from suggesting that we should transform the BBC by replacing the charter under which it has operated throughout its years of existence with huge success, for which Members on both sides of the House have commended it, with a different structure of supervision and control, for which the case, in my view, has not been made.

Lord Borrie: My Lords, the Minister kindly mentioned at the beginning of his remarks the mantra of the great Lord Reith; that the BBC's task was to inform, to educate and to entertain. The White Paper itself seemed to emphasise entertainment quite a lot. Since Lord Reith, a vast number of other channels has become available whose emphasis on entertainment is profound; indeed, any of us may see that on any day or evening. I have nothing against entertainment but, given what is available on television in general, surely the emphasis should be more on the first two of the three items mentioned by Lord Reith. The BBC has chased ratings far too much, all to prove that it is worthy of its licence fee. The Minister said that it should not chase ratings in future, but with all the emphasis on competition and so on that he referred to, I fear that that will be the bad result of this White Paper.

Lord Davies of Oldham: My Lords, we certainly do not want there to be an over-emphasis on ratings chasing, but I think my noble friend will recognise that the BBC is funded by all licence payers—the whole of our community that watches television. It is therefore obliged to provide the fullest range of services. There is nothing wrong with most people looking to television for entertainment. Of course it has always been the objective of the BBC to inform and to educate since the days of Lord Reith, but the BBC has also been our most important form of entertainment for our people. It has played that role brilliantly, often producing some of the best programmes in the world in this field. Of course a balance must be struck, and crude ratings chasing would not fulfil the requirements placed on the BBC, but we are right to emphasise entertainment, and the nation is right to expect its main television producer to have regard to entertaining the public.

Lord Hamilton of Epsom: My Lords—

Gas Supply

Lord Sainsbury of Turville: My Lords, I should like to repeat a Statement made this afternoon by my right honourable friend the Secretary of State for Trade and Industry in the other place.
	"Early yesterday, National Grid issued a gas-balancing alert as a prudent signal to the market to further increase gas supplies. This was a planned measure and not an emergency response. National Grid took this action in response to an increase in gas demand due to the cold weather and problems on the supply side, with the Rough storage facility being out of operation and low delivery through the interconnector at the weekend. This resulted in a significant call on short-range gas storage and the resulting spike in the gas price.
	"As of today, the demand/supply situation has eased compared with yesterday. Demand has fallen to near seasonal normal demand. Supply has increased, with increased flow through the interconnector. We are also seeing deliveries through the Isle of Grain, and a further shipment of LNG is due to dock tomorrow. Deliveries from the North Sea are performing strongly. National Grid expects supply and demand to balance today, and does not anticipate the system to be out of balance in the coming days. But of course National Grid, Ofgem and my department continue to monitor the situation very carefully in case of any change in the anticipated demand/supply picture.
	"There is no doubt that Rough being closed is making things more difficult. Rough accounts for about 80 per cent of our total storage capacity. It can supply 10 per cent of average daily winter demand. If it was in operation, we would not be experiencing any problems this week. Members may recall that an accidental fire a few weeks ago shut the main pumping station. The damage caused is still being repaired. We are in close contact with Centrica, which owns the facility, and I understand that it will not be back in action until we are through the winter.
	"It is of course normal for storage to be used during the course of the winter. We would expect the market to be drawing on short and medium-term storage in current circumstances. Indeed, that is no surprise, particularly at this late stage of the winter. We have had a spell of colder weather later in the winter, and the UK's long-range storage facility has been shut for a month. The gas system and market has responded to these circumstances.
	"Let me reiterate that, on present information, we do not expect a formal gas supply emergency. Although it is clear that we must not be relaxed about the current situation, it is equally important that we do not cause unnecessary panic. The present situation does not threaten domestic supply or the vast majority of commercial and industrial supply. Even in the event of an emergency situation, National Grid will be able to maintain supplies to domestic and other key gas consumers.
	"Of course, this situation has had a major impact on prices. The spot gas price has increased significantly since the weekend. I know that it is not easy for some heavy industry to make alternative arrangements, and the high prices will have an impact. The market is responding to a tight demand/supply situation, as you would expect. At these prices, gas suppliers have every incentive to maximise supply from all possible sources, and we are in close contact with the operators of the interconnector to ensure that it flows as much as possible.
	"Market liberalisation in mainland Europe is a key factor in reducing energy costs for British consumers. That is why we have been encouraging the European Commission to take action, and warmly welcome the hard-hitting report it published on 16 February. We will continue to press for market reforms.
	"Looking forward, a very significant new import infrastructure—new pipelines, LNG import terminals and increased storage—is being delivered by the private sector in the coming years. This represents some £10 billion of investment. This will increase the security of the gas supply in the UK, and should reduce the upward pressure on UK prices.
	"In short, we are in an exceptional circumstance in which our largest storage facility is out of action and we are experiencing an unseasonally cold spell of weather. None the less, supply is meeting demand and the market mechanisms are working, albeit at a relatively high spot price. National Grid, Ofgem and my department will continue to monitor the situation carefully".
	My Lords, that concludes the Statement.

Lord Howell of Guildford: My Lords, I am grateful to the Minister for repeating the Statement. This situation is very serious, and there is certainly no room for complacency where energy supplies are concerned. Second only to water and fresh air, the lifeblood of our modern society now depends almost totally on secure and reliable energy supplies. Furthermore, we now face hugely increased reliance on gas for both domestic, feedstock and daily electricity supplies to millions of homes.
	The Statement seeks to reassure us, but will the Minister say whether it is true that we have stored only nine days' gas supply for the nation? Will he also explain why the situation has been allowed to develop in this way? Why have both No. 10 and the energy Minister in another place, who frankly seems out of his depth, repeatedly told us that there would be no threat to gas supplies when there now obviously is one?
	The Statement speaks of not expecting a formal emergency "on present information". Unfortunately, "present information" is not enough for energy planning. As, I think, my noble friend Lady Thatcher once remarked, the unexpected always happens. It is no good pleading exceptional circumstances, as in the Statement, because circumstances always turn out to be exceptional.
	In the present situation, a whole string of things have gone wrong, many of which were utterly foreseeable. The big Norwegian fields have temporarily closed, including Ekofisk; the Langeled pipeline from the Ormen Lange field and other great new gas fields is not ready; the Rough storage field has gone down, as the Minister has acknowledged; not all the LNG frozen gas has arrived; the new terminals for LNG are, anyway, not completed; the French have gone on strike and taken control of some of their LNG terminals; and the French and German power monopolies have nicked our gas before it gets to us from the continental grid, in the way that the Minister described. In addition, our North Sea gas supplies have run down sooner than expected, as the Minister now lamely admits, which is a deplorable admission; the weather has been unpleasantly cold, about which I do not know why we should be surprised; and there is a rush to gas as oil prices have soared.
	Those sorts of things happen regularly. Good energy policy should anticipate them and be prepared for breakdowns on the very coldest day of the coldest year of the decade, and of the century. The new infrastructure, to which the Statement hopefully "looks forward", should already be in place. The truth is that national secure energy requires market competition for its efficient delivery, but it also requires the highest degree of strategic planning. It is time that Ministers woke up to that fact, although it is getting very late in the day.

Lord Redesdale: My Lords, I do not think that I will put all the blame on the French for nicking our gas. That is an excellent expression, which I did not expect to hear in this House. The question was presented in another place purely and simply because gas hit 255p per therm on the spot markets. The Minister has said that market mechanisms will take their course. The gas price has dropped to 150p per therm, but market mechanisms are not working in the European gas market, because throughout this winter, every gas consumer in this country has paid a significantly higher price than their European cousins have paid for their gas.
	The Statement states that the cold weather was to blame—it is forecast for only a few more days—and that the interconnector was underused. That is very strange because at a spot price of well above the European average, the interconnector should have been fully operational. The fire at Rough is given as a prime reason for the jump to the spot price of 255p, but the problem with that is that the fire at Rough took place a month ago and gas supplies have met demands since then. One problem that we face is the expectation that we will run out of gas because we have produced a lack of storage and supply due to the unforeseen decline in the North Sea gas fields. But that is a real issue.
	I have only a few questions for the Minister. What is the Government's view on making market mechanisms work in Europe? With the consolidation of the gas giants in Germany and France, it seems that we will face added, rather than fewer, problems. I especially question the merger between Suez and Gaz de France. What support is the Minister giving Neelie Kroes, the EU Competition Commissioner, in questioning that merger? It would seem very strange if that merger took place and then the EU Competition Commissioner decided that there should be a breakdown. That would cause quite a few problems. What provision is being made for next winter? It is no good crying over the position now. But, notwithstanding the gas interconnector that will come from the Norwegian fields at Easington, is the Minister concerned about the difficulties in providing added storage capacity, especially the problems with planning? Finally, what steps are the Government taking to monitor fuel poverty over this period? Many older people around the country are affected by the ramping up of gas prices from all the companies. I hope that the Minister will look at ways not just to monitor this but also to alleviate that problem.

Lord Sainsbury of Turville: My Lords, first, I shall turn to the situation that we face this winter, about which we have been quite clear since the beginning of winter. We are moving from a situation where swing production in the North Sea was able to cover fluctuations in demands for gas to one where that is no longer the case. Therefore, we need greater storage in this country. We do not need as much storage as countries that have none of their own supply, but we need more than we have had in the past. In the Rough storage field, we had something like 70 days' supply, which would provide about 10 per cent of our national capacity. That is why the fire there is such an important factor.
	The noble Lord said that all those events were predictable. I am not certain that they were predictable, but I take his point that one should plan, as far as possible, for a range of difficulties which occur every year. We knew that if those difficulties went against us, this would be a difficult year. It would have been desirable if industry had come forward with more capacity before we got to this situation. It came through slower than we would have liked because of planning delays. We and the DTI are working very closely with suppliers to make certain that those planning difficulties do not continue.
	Clearly, market mechanisms are not working in the EU, which is why we welcome the strong report from the Commission and the announcement that it is taking anti-trust action against companies. No companies have yet been named. We will fully support the Commission on its action. In December, the Chancellor and the Secretary of State urged the Commission about our concerns on the functioning of the EU gas market.
	The noble Lord said that the Rough storage field did not play any part in the immediate situation because it happened in February. The situation is not simply immediate in those circumstances; a lack of storage combined with a period of sharp demand and questions of getting supply through the interconnector have come together to create this situation.
	We will continue to support Commissioner Kroes and the taking of anti-trust action. As regards next winter and extra capacity, a whole series of projects are coming through. The three main ones in 2006 are a further upgrade to the existing interconnector in Belgium, the new Langeled pipeline importing Norwegian gas to Easington, and the new BBL interconnector from the Netherlands. Two further major import facilities are scheduled to commission in 2007 and 2008.
	As always, the two major problems are industry and the impact on vulnerable consumers. Even after those further price increases from the big energy companies, domestic gas and electric prices, including taxes, are likely to remain below the EU median level. The Government are continuing with all the initiatives, such as Warm Front, which help the most vulnerable households.

Lord Foulkes of Cumnock: My Lords, does the Minister agree with me that Malcolm Wicks is an excellent energy Minister, well respected throughout the energy industry, contrary to what noble Lords opposite said, and that he is getting to grips with changing energy policy—the "dash for gas" that we inherited from the previous government? Is this not a third wake-up call, along with the huge increase in the price of gas and the way in which the Russians turned off gas to Ukraine, reminding us that we need diversity as well as security of supply in energy generation? Will the Minister ensure that the energy review is published as quickly as possible so that we can end this increasing dependence on gas and have a proper, diverse energy supply, including nuclear, clean coal and renewables?

Lord Sainsbury of Turville: My Lords, I certainly agree that Malcolm Wicks is an excellent Minister; he is getting to grips with the issues. I strongly support his view that diversity of supply is absolutely essential. For the same reason given by the noble Lord, energy supplies and demand are extremely unpredictable and therefore it is absolutely fundamental to have very diversified sources of supply because you cannot predict in what circumstances problems will arise. The energy review is therefore extremely important and the sooner we have it the better.

Lord King of Bridgwater: My Lords, is this not the least surprising Statement to anyone who has been listening to the continual warnings by those in the energy industry of the narrow situation that we could face? I am glad to hear that the Minister is at last supposed to be getting to grips with the situation, but isn't it far too late? That is borne out by the present troubles.
	The Minister has referred to the weather being unfavourable and rather colder but I seem to recall that back in the autumn we were getting warnings that we were in for a really hard winter. Thankfully, although there is a cold spell now, that never materialised, but what on earth would have happened if we had had that really cold winter, which the Government were supposed to be warned about?

Lord Sainsbury of Turville: My Lords, I shall deal first with the position of the energy industry. The main responsibility rests on the shoulders of industry to come forward with capacity to deal with these situations; this is not at all the problem of government in the sense that we got it wrong. The fault lies very clearly with the industry, which has been slow to put in the capacity it needs to deal with this situation. It is not a question of the Government making predictions and getting it wrong; energy industry must share some of the responsibility for our insufficient storage capacity. Where the Government is involved is in the question of planning delays, which have held things up. We have been doing all we can to make certain that that is not too much of a problem.
	If everything had gone wrong, we would of course be in a worse situation than we are in now. The Rough storage facility has been out of commission for quite a lengthy time, on top of which we have had the cold period, which has put a lot of strain on the system, but the system is coping at this level.

Lord Jenkin of Roding: My Lords, the Government have now recognised that the gas supplies from the North Sea are running down more quickly than had been anticipated. Does the Minister agree that if one looks at that Statement rather more closely, one sees that the supplies from the larger gas fields seem to have been running down more quickly than was anticipated and this has not been matched by new sources of supply from the North Sea to make up for that? Do the Government and the noble Lord's own department believe that the Chancellor's swingeing tax increase on the North Sea oil producers is likely to help or hinder that situation?

Lord Sainsbury of Turville: My Lords, it has always been understood that we will see a decline in North Sea gas; there was bound to be a peak and a decline from this. We are seeing that decline—it is one of the unpredictable events. I suspect that that is going faster than what people would have thought in the past.

Lord Jenkin of Roding: My Lords, what about tax? Will the Minister answer my question?

Lord Sainsbury of Turville: My Lords, the tax situation is always the same. If you do not have tax you can probably have more supply, but the question is whether the tax was fair and reasonable.

Lord Stoddart of Swindon: My Lords, does the Minister not agree that the present situation has arisen because of the profligate policies of successive governments? It is not so long ago that it was estimated we would have self-sufficiency in gas and oil until 2030. Now, if we are not already failing to be self-sufficient, we will certainly cease to be self-sufficient by 2012. Successive governments, by using gas for electricity generation, instead of continuing to use clean coal technology, have landed us in this situation. Does the noble Lord also not agree that energy is far too important to be left solely to the market? Energy planning needs to be done on a strategic basis. It is not being done on a strategic basis now, and has not been done strategically for a very long time; nor will it be done so long as energy policy is merely an adjunct of another department.
	I have said to the Minister many times before that we need a department of energy in this country. Will the noble Lord ask the Government to consider re-inventing the Department of Energy, which did a good job while it was around?

Lord Sainsbury of Turville: My Lords, I would not use the word "profligate" to describe the use of energy supplies. The question is whether we have been relying too much on one source of energy and failing to have a more diversified energy policy. In the circumstances, given the cost of gas and its environmental impact, it is not surprising that this would become a more important part of our energy supplies.
	I agree with the noble Lord, Lord Stoddart of Swindon, that you cannot organise energy markets entirely on a mandatory basis. There has to be a strategic overview. We are creating a strategic framework in which one provides incentives for, say, renewable energy and has concern about environmental impact. It cannot therefore be a free-market plan but it should be done on a strategic basis rather than on the basis that the Government have to be the producer of energy and run all the energy sources. We have found in the past that that is not an efficient system and equally is not a good way of meeting demand.
	Thirdly, the noble Lord rightly asked whether it was right to have energy policy in the DTI. We have an energy department in the DTI. It works pretty effectively and it is always an illusion that there are enormous advantages to be had by constantly moving departments from one area or the other. If a good job is not being done, we need to ask why and on what basis, and to put that right, rather than just shuffling things around.

Lord Stoddart of Swindon: My Lords, since there is time, could I just come back on that last answer on a department of energy? It is a question of priorities; I do not believe that energy has been getting the priority it deserves in the Department of Trade and Industry, and nor will it. I repeat my question: will the Minister recommend to the Government that they reset up, if that is the right word, the Department of Energy?
	Perhaps I may add that in 1983 the Commons Select Committee on Energy, of which I was a member, warned the then government not to dissipate too quickly our North Sea energy supplies, but successive governments have ignored that advice.

Lord Sainsbury of Turville: My Lords, as the noble Lord has repeated his question, perhaps I may repeat my answer. I would not recommend that. If there are things wrong with the energy policy, one needs to look at the policies, consider why we are on the wrong track and make corrections. Moving energy around between departments does not deal with the basic issue, which is whether the policies are the right ones. That is what we must focus on.

Immigration, Asylum and Nationality Bill

Read a third time.
	Clause 4 [Entry clearance]:

Lord Dholakia: moved Amendment No. 1:
	Page 2, line 22, at end insert ", or
	( ) entering for any other purpose prescribed by order for the purpose of this subsection"

Lord Dholakia: My Lords, first I thank the Minister and her Bill team for our briefing meetings. They have been most helpful, as is reflected in the large number of agreements that we have been able to secure during the passage of the Bill. Perhaps she will convey our thanks to her team for their efforts.
	Amendment No. 1 is grouped with Amendment No. 2—in the name of the noble Baroness, Lady Warwick of Undercliffe, my noble friend Lord Avebury and me—as well as with Amendments Nos. 35 and 36. I turn first to Amendment No. 1. It is probably the most non-controversial amendment that we have had and the Minister should have little difficulty in accepting our proposal. Sections 88A, 90 and 91 of the 2002 Act restrict rights of appeal against a refusal of entry clearance in respect of some visitors and categories of cases specified in an order made by the Secretary of State. Clause 4 substitutes for these sections a provision to limit all appeals against refusal of clearance and entry to certain limited grounds—for example, human rights and race discrimination—with the exception of those in the listed categories. I welcome the fact that a right of appeal for family visitors and people wishing to join dependants in the United Kingdom is maintained.
	The purpose of our amendment is to give the Secretary of State a power to restore rights to further groups should he determine that to be necessary. The amendment does not force the Government to do anything. It provides a power so that if in the future the Government determine that certain groups need to retain the right of appeal despite the points system, the right can be restored. Under the clause, rights of appeal can be restored only to visitors and dependants.
	The amendment also probes the Government's intention in refusing to retain for themselves a power to restore a wider range of appeal rights, given that in debate the Minister has made much of the flexibility afforded by secondary legislation. We doubt the power of secondary legislation if it retains no flexibility whatsoever. The Minister had proposed to take a power at large to restore appeal rights under what had been new Section 88(2)(b), which it was proposed would be used for unaccompanied children. Of that provision, the Delegated Powers and Regulatory Reform Committee stated:
	"The Secretary of State is empowered to give rights of appeal to others by order subject to the affirmative procedure. We consider it appropriate that he should be empowered to do so, and that the exercise of the power should be subject to the affirmative procedure".
	The Home Office memorandum making the case for a delegated power appears as Appendix 1 to the report. Thus there is no scope for the Minister to refuse the amendment on the basis that it would introduce in secondary legislation a wide-ranging power to restore appeal rights.
	It is difficult to square promises of efficiency in the decision-making process of entry clearance officers thanks to training, guidance and review with the fact that provision for all that is currently made in the Diplomatic Service procedure and yet that system does not work. Overall, the Government are not obliged to do anything. The amendment would simply provide a power if, in the future, the Government considered there to be a need to retain the right of appeal in certain cases.
	I resist the temptation at this point to talk about Amendment No. 2. I shall speak to it only after the noble Baroness, Lady Warwick, has done so.
	Amendments Nos. 35 and 36 deal with Clause 62, concerning the commencement of the Act. The purpose is to make the implementation of the abolition of appeals in entry clearance cases subject to affirmative procedures. Our amendments are designed to ensure that standards in decision-making have been raised by the time of commencement. These are non-controversial measures designed to assist the Home Secretary, who, I am sure, would welcome powers to ensure that the system is geared towards making such provisions as may be necessary for the operation of Clause 4. I beg to move.

Baroness Warwick of Undercliffe: My Lords, in speaking to Amendment No. 2 tabled in my name, I, too, pay tribute to my noble friend for her willingness to listen and to consult, and for the careful way in which she has sought to engage with stakeholders to find ways of ensuring that bona fide international students are not deterred from coming to the UK as a result of the changes in wider immigration legislation.
	The amendment is similar to one that I tabled on Report. My intention in returning to the issue is not to force the matter to a vote—I should like to make that clear at the outset—but rather to provide an opportunity for the House to probe the Government one final time on the shape of the proposed administrative review. Given the planned abolition of the right of appeals in entry clearance cases, this becomes a matter of central importance for me and for Universities UK, in which I declare an interest as chief executive.
	The Government have recognised that even under the new points-based system mistakes may well occur, so they have reiterated their commitment to introduce an administrative review scheme to ensure that, where an entry clearance decision is disputed, there is an opportunity for applicants to seek to have the decision reconsidered. Last week, the Government published their Command Paper Making Migration Work for Britain. It sets out in more detail what the points-based immigration system will look like.
	There is no doubt in my mind that the points-based system is likely to improve the quality of initial decision making. Some of the changes that the new system will introduce are very welcome. The emphasis on objective decision making, institution-specific visas and efforts to produce a quality-controlled register of approved education providers are all welcome. But some significant questions still need to be answered. Crucially, from my point of view, the design of the promised administrative review is still unclear. Indeed, I am worried that the wording of the relevant section—paragraphs 52 to 54—will not provide the wide scope I had hoped for, but might limit the review to a consideration only of the facts. That is a very important issue, because there is a general recognition that not all subjectivity can be removed from the process. As the immigration Minister, Tony McNulty, said in another place:
	"100 per cent objectivity is a fool's errand . . . It is not about simply ticking boxes and adding points up, although that is a large part of the measure".—[Official Report, Commons Standing Committee E, 20/10/05; col. 116.]
	I have shared with the Minister and other Members of the House, for whose support I am enormously grateful, an outline of the scheme that I would like to see. In my view, the administrative review should require entry clearance officers to provide detailed written reasons for the refusal of an application; should allow all unsuccessful applicants to request a review; should be overseen, preferably by the regional tier of UK visas staff; should enable sponsoring institutions to make representations on behalf of applicants; should be completed within a reasonable timescale; and should allow for the clarification of existing evidence. In addition, it is important that the entry clearance monitor should have oversight of the operation of the scheme. I hope that the Minister will be able to reassure me on these points.
	Perhaps it would be useful if I ask four specific questions. Paragraph 53 of the Command Paper states that administrative review will be available if,
	"an applicant believes a factual error has been made in the consideration of his application".
	If the Minister accepts, as I believe she does, that there will be some element of subjectivity in the process, can she reassure me that the administrative review will be able to consider judgments and points of law, as well as facts? The Command Paper states, on page 12, that the points-based system will be supported by administrative review, where appropriate. Can the Minister confirm that, as she said to me on Report, administrative review will be available to anyone who is refused a visa under the new system? Will she undertake to consult fully on the design of the administrative review and to publish the final scheme so that all parties know what to expect?
	Finally, many in this House are uneasy about the fact that, under the system as we currently understand it, entry clearance officers and their immediate managers will be responsible for reviewing their own decisions. If the Minister accepts that there will be cases where subjective judgments are involved in reaching a decision, does she agree with me that there should be an opportunity to involve a third party—someone within the immigration system but not involved in that initial decision—in the review? Will the Minister consider, for example, how the regional tier of UK visas staff might be involved in the administrative review?
	I have shared these questions with my noble friend the Minister in advance of this debate, because this really is the last opportunity for us to secure reassurance, on the Floor of this House, about the operation of the new system during the passage of the Bill. I hope that my noble friend and, indeed, all Members of this House will understand that I have pressed this point simply because I want the system to be as fair and effective as possible. I know that that is a shared goal and I look forward to the Minister's reply.

Lord Avebury: My Lords, I thank the Minister for being as good as her word and letting us have the Home Office consultation on the points-based system before we came to Third Reading, although I obtained a copy only on Thursday evening—I would have liked longer in which to study it and to consult others. A great many questions still remain unanswered, as we have heard from the noble Baroness, Lady Warwick. I do not think that we have enough information to assess how the system is likely to work; nor do I think that anybody could have taken up the Minister's invitation in col. 534 of the Official Report to submit examples of wrong decisions made under the existing system that would not have been dealt with correctly under the new one. We have still not been told what points will be awarded, except in tier 1 and tier 2. Nor have we been given any details of the financial securities that will be required of applicants coming from certain unidentified countries, particularly those who have certain unspecified characteristics. If the Minister would care to fill in those blanks, we could see what could be done to provide her with comparators. Of course, by that time it will be too late for us to do anything about it.
	Under the points-based system, decisions on entry clearance and leave to remain are supposed to be based on objective criteria only. As the noble Baroness, Lady Warwick, has said, there is no such thing as total objectivity. In those cases where the decision is made entirely on the facts, the necessity for appeal is eliminated; we concede that. An offer from an approved institution will be a proxy for intention and ability to study, backed by the sponsors undertaking certain responsibilities for the student while in the UK. There is an equivalent duty on employers when the application is for entry clearance to work. That is, as the noble Baroness has said, a marked improvement on the present system, although as we already have a register of bona fide universities and colleges I still do not understand why this scheme could not have been realised in the educational sector by changes to the Immigration Rules, as I suggested at an earlier stage. In the Minister's letter to me of 23 February, she said that it could not be done until,
	"the system of sponsorship is up and running and underlain by certain clearly defined responsibilities for institutions and appropriate monitoring and compliance functions within IND".
	If the institutions' offer of a place is to be treated as a proxy for intention and ability to study—as we agree it should—what more will be required of the institutions? The new document says that pilots are running at 30 institutions, which are required to report non-enrolment or discontinuation of studies by any overseas student to whom a place is offered. I assume that this will include special provisions for recording any who drop out temporarily for reasons of ill health or bereavement, for example. Is it the intention to use this reporting system to identify and return those who use the offer of a place to gain entry for some other purpose? Do the Government have any reason to believe that, with fees at their present high levels, this is a problem? Or are the pilots meant simply to confirm, statistically, that where particular institutions offer places the students normally comply with reporting conditions and complete the courses?
	The new document does not explain how the two classes of educational institution, A and B, are to be defined, and on what criteria the number of points each will attract is to be determined. There is even greater uncertainty over how the applicant will demonstrate that he has sufficient funds to cover fees and living expenses. The document does not say so but, although an applicant is awarded points for the amount of money that he can produce up front, there must be a subjective element in assessing whether he will be able to sustain himself for the duration of his course. With regard to the financial securities that will be required of those whose personal circumstances or migration route suggest that they present a higher risk of breaching the Immigration Rules, the Government say that they have listened to the objection—raised, for example, by the NUS—that demanding securities will make it harder for students from the poorest countries to come here. They will therefore require securities only where objective evidence shows that taking a particular route or belonging to a particular class means that migrant students are disproportionately likely to breach immigration conditions.
	It is only too likely that the routes in question will be taken by those from poor countries. Although the procedure may reduce the overall number of students who breach their conditions, it may also skew the overseas student population towards the richer countries. What does the document mean by "personal circumstances"? Is this related to the financial circumstances of the student or his family, so that if, for instance, he has no bank account or his parents are both unemployed, he will be disqualified? That is one of a great many uncertainties that remain.
	If the Government insist on introducing these financial guarantees, why could they not do so under existing rules? Rule 57(6) already requires that a student should be able to,
	"meet the costs of his course and accommodation and the maintenance of himself and any dependants without taking employment or engaging in business or having recourse to public funds".
	At the moment, the published Immigration Directorates' Instructions add nothing on how to assess the applicant's ability to satisfy this condition. Here is another area where pilots under the existing rules could have allowed different criteria to be tested before the new system goes live. I would like to know from the Minister why that was not done. An objective test of the student's ability to support himself could be implemented now; it would enormously reduce the number of appeals under the existing system.
	That brings me to the question of how long it will be until the points-based system is introduced. We have an amendment to Clause 62 saying that Clause 4(1) should come into force on a date to be appointed by affirmative resolution, as my noble friend has already explained. That is to ensure that the transition is properly managed and properly monitored by Parliament. I believe that it has been said that the timing would not be the same for the different tiers. However, if in each tier the proposed tests are first applied under the existing rules, there should be no problem. Tier 1 should be extremely easy to cope with because it does not rely on sponsorship, and tier 2, for skilled migrants with a job offer, could be the next, since there is already a provisional scheme for the points—as we read in the document that we have now been given—which could be read across into the rules.
	I have a couple of questions about the inclusion of ministers of religion in tier 2. First, would they be required to show competence in English, as in tier 1, and how would that be assessed? Secondly, although the treatment of prospective earnings as a material factor in gaining admission may be appropriate in other occupations, it is not necessarily appropriate for ministers or priests, whose value is not measured by their incomes. How will the system treat Buddhist monks, who do not earn or handle money? I declare an interest as a patron of the Buddhist prison chaplaincy.
	For tiers 3, 4 and 5, it may be a long wait, which is why we on the Liberal Democrat Benches have been so desperately concerned to do something about the shocking defects that have been identified in the existing system by the previous monitor on entry clearances, Ms Fiona Lindsley, as we emphasised both in Grand Committee and on Report. We had hoped to see her final report—the first draft of which she submitted before she left office at the end of November last year—before this debate. The Minister told me in her letter of 23 February that the final draft was submitted in late January—I believe that it has now been narrowed down to 23 January—and that arrangements were being made to lay the report before Parliament. Seven weeks later and after several inquiries behind the scenes, including a personal approach to the noble Lord, Lord Triesman, followed up by a letter the same day and a Question on the Order Paper, Ms Lindsley's report still has not appeared. I am very unhappy that the Government have avoided a discussion on the recommendations that she has no doubt made on improving the present system, particularly as we now hear that the new system may not be introduced until 2008, which means that we shall have to cope with all the defects in the current system for at least another two years.
	Finally, I wish to make a couple of remarks about a meeting that the Chinese community had with the Minister, Mr Tony McNulty, about which I heard only just before I came into the Chamber. As your Lordships will recall, on previous occasions we have discussed the particular problems that arose with the Chinese community. I am very grateful to the Minister and her colleagues for the thorough way in which they discussed those with the representatives. However, at the meeting with Mr McNulty, the issue was raised that chefs were unlikely to have any formal qualifications. The Minister said that he recognised that chefs were not specifically addressed in the Command Paper and that it would be wrong to have a system that excluded ethnic cuisine chefs. He said that there would be a skills advisory board specific to each sector and that the Chinese and Bangladeshi restaurant communities would be consulted on issues of experience and remuneration levels and whether the relevant job was considered a shortage occupation. Incidentally, that is where I got the 2008 date from, because that was what Mr McNulty told the representatives. We had not heard that from any other source, so far as I am aware. It is a pity that we did not know earlier that there would be this long delay before the roll-out.
	The Chinese community expressed concern that the abolition of the sector-based scheme would create serious problems for the low-skilled workers category. The Minister acknowledged that and said that the solution was for them to talk to his team about the issues of remuneration, qualifications and shortage occupations. He went on to explain that,
	"for the new business to the work permit system, then if approved as sponsor, will always be on the A list".
	I did not express that very well, but that is how the briefing is phrased. I think that it means that every person on application would be classified as being on the A list until there was any information leading the department to think that they were not reliable employers. Again, that is something that we had not heard before—that new applicants, if they had not been involved in employing people from overseas previously, would always be classed as being on the A list until there was some reason to suppose that they were not reliable. That illustrates that even at this late stage people are still discovering a great deal of the detail about how the points system will work, which we might have been told at an earlier stage to our great advantage.
	On our amendment, the best that I can do is to quote Mr Donald Rumsfeld, who said, "We know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don't know we don't know". That is why we believe that the Secretary of State should have this power. It may never have to be used if the system is as wonderful as Ministers claim, though one of the knowns is that returning residents who have been abroad for more than two years for legitimate health or family reasons may now be excluded from their homes for ever under this scheme.
	We say that it is impossible to prove that every decision will be a matter of simple arithmetic. The partial description that we have of the points system leads us to conclude—as the noble Baroness, Lady Warwick, has said—that subjectivity has not been entirely excluded. It is only sensible and reasonable, then, to have this power in reserve.

Baroness Carnegy of Lour: My Lords, I shall be very brief. I would like in particular to support Amendment No. 2, spoken to by the noble Baroness, Lady Warwick. The universities continue to be extremely anxious about what the effect of all this will be on students coming to them. They appreciate, as we all do, that publication of the details of the points system is enormously helpful. We may say a little more about that when we come to Amendment No. 3. If Amendments Nos. 1 and 2 are not accepted, I hope that Amendment No. 3 will be, because it seems to me a very practical way of approaching the problem.
	We need to know from the Minister the circumstances in which administrative review will be available. Will it be available to anyone who is refused? I see that the Minister nods. It would be a great comfort if she could confirm that. Will the review be possible if there are factual or legal errors or subjective decisions that are questionable? Some good examples have been given of decisions on whether a student can pay for a course. That will be a subjective decision and it may be that it should be reviewed. The record so far on the way in which these decisions have been made is clearly very weak. There is a lot of improving to do. I look forward very much to hearing the Minister answer those questions.

Lord Dearing: My Lords, I support Amendment No. 2 and commend the four points put to the Minister by the noble Baroness, Lady Warwick. It seems to me that a points system will reduce the scope for poor decisions by the entry clearance officer but it will not avoid judgment. It is particularly important—I add this point to those made by the noble Baroness, Lady Carnegy of Lour—that the review is at least overseen by someone who was not a party to or involved in the original decision.

Baroness D'Souza: My Lords, I came a little late to the discussion so I apologise if what I am about to say has already been raised. I simply want to underline the point that has been made—most recently by the noble Baroness, Lady Carnegy of Lour—that the administrative review has to be independent. Otherwise, it will not have the value that it should have.

Lord Laird: My Lords, I also rise to support the amendment standing in the name of the noble Baroness, Lady Warwick of Undercliffe.
	Many noble Lords, from all sides of the House, have expressed concern about the planned abolition of the right of appeal for international students who are refused visas, arguing that the right of appeal is an important safeguard. Numerous examples have been given of poor-quality decision-making under the current system. We know that, last year, 33 per cent of students were initially refused visas. Of those who appealed, about one in four was successful. I was alarmed to hear about the case of a student refused a visa because the entry clearance officer did not believe it credible that if the student wanted to improve his English, Northern Ireland would be his destination of choice.
	The Minister has argued that mistakes under the current system will no longer be made under the points-based system which will replace it. Although the Command Paper published last week is light on that detail, I am prepared to accept that there will be substantial improvements in the way decisions are made. However, as Universities UK and others have pointed out, the system will not be 100 per cent objective. That is why it is so important to ensure that the administrative review scheme promised by the Government really provides an adequate means of redress where mistakes are made. It cannot be right, for example, that the administrative review should consider only factual errors. Since there will remain an element of subjectivity in the process, can the Minister reassure me that that review will be able to overturn faulty judgments?
	Although the Minister has said that mistakes of the kind that I have described would not be made under the new system, what happens when there is human error? After all, the judgment in the case of the student who wanted to study in Northern Ireland would not have been supported by the current Immigration Rules, and the same personnel will be making decisions under the new system. So what guarantee is there that personal prejudice will not creep in to influence the apparently objective allocation of points? After all, the Command Paper has given us no clear idea about how points will be allocated.
	Another point that has caused concern is the question of who will have the right to ask for a visa refusal to be reviewed. The Minister told the noble Baroness, Lady Warwick, on Report that the administrative review will be available to "anyone who is refused". Is that consistent with the statement on page 12 of the Command Paper that administrative review will support the points based system "where appropriate"? I want to know that anyone who feels they have been unfairly refused a visa will be able to have that decision reviewed, if they so wish. Can the Minister confirm that that will be the case?
	I also agree with the noble Baroness, Lady Warwick, and others, that the person with final responsibility for the review should not be the person whose original decision is being questioned, or indeed their immediate manager. An official at least one step removed from the original decision should be involved. It is disappointing that the Government have insisted on moving to abolish the right—

Lord Evans of Temple Guiting: My Lords, I am very sorry to interrupt the noble Lord, but I think that he is making a Second Reading speech when we are now at Third Reading.

Lord Laird: I apologise, my Lords, and will conclude my remarks there.

Lord Lewis of Newnham: My Lords, I add one factor. First, I congratulate the Minister on the new scheme, which has with it the elements of a successful system. While I accept that much of the discussion today emphasises the fact that we do not know enough about its detail, I want to touch on one major factor influencing the acceptance of students when they get to the gate, as it were. That is the financial implication.
	In the University of Cambridge, we spend a particularly long period trying to assess the financial limitations and obligations on the part of both the student and the university itself. We accept—as we have been doing for many years now—that we will not take in students who lack the financial backing to be able to carry the scheme forward. That in itself is an important factor and I am sure that Cambridge is not unique in that respect. It must apply to other universities.
	At the end of the day, the university authorities will often have to deal with that problem themselves. They will have to try to deal with a situation as and when it arises, should there be a deficiency in the student's ability to pay fees. That ought to be considered. If this is a point of rejection, then it ought to be referred back, at least in part, to authorities such as the universities which have been looking into that particular situation.

The Earl of Sandwich: My Lords, perhaps I may say a few words about the position of migrant domestic workers. I have not studied the Command Paper but I understand from specialised agencies such as Kalayaan and Anti-Slavery International that this policy seems to run against what the Home Office has already said.
	Those agencies have been told by officials working on the points system that domestic workers either qualify as part of tier 2—which few can do, since it requires them to have NVQ level 3 or the equivalent—or will be given a maximum of six months' leave, which cannot be extended. The idea is that the employer recruits a replacement domestic worker, from the UK or European Union, and sends the original worker home.
	In practice, the proposal means that migrant domestic workers would go underground. That is really contradictory when Home Office policy has been to ensure that there is no hidden slavery—an abuse taking place behind closed doors, where people are hidden away. The new proposals would put domestic workers at greater risk of such exploitation. I acknowledge that there is a mention of diplomatic employees but that is a small element in the total.

Baroness Anelay of St Johns: My Lords, I add my thanks to the Minister for the series of meetings that she has assiduously held on this Bill in an attempt to give assurances. Some amendments have indeed been brought forward, the most crucial regarding Clause 1.
	I shall refer briefly to Amendment No. 1 in the name of the noble Lord, Lord Dholakia. I do not propose to speak on it today. We are at Third Reading and I have said all that I wished to say at other stages of the Bill. I hope that the noble Lord will forgive me if I end at that point. However, I am grateful to the noble Baroness, Lady Warwick, for bringing forward her Amendment No. 2. She is right to do so because, as she says, this is the time for further clarification and our last chance to get assurances from the Government. The noble Baroness is also right to say that she does not intend to press the matter to a Division. We are all agreed that the points system must be made to work. To do that requires goodwill from all of us so that we get as much clarification from the Minister as possible. The noble Baroness, Lady Warwick, was careful in her arguments to address herself simply to the administrative review process itself. I will say one or two words about that in a moment—in support of her, I hope.
	When the noble Lord, Lord Avebury, spoke he rather opened Pandora's box by taking us into a debate about the points system. I do not see that as a problem, since at Second Reading we had no opportunity to debate that system. The Minister very constructively assisted the delay of Third Reading so that noble Lords could put questions about the points system today. I had rather thought that it might come up in the next group of amendments, so I had stuffed all my questions in there. I have given the Minister notice that rather than double up I will ask those questions now. In a moment when I go through those questions and test the patience of the House, noble Lords will at least know that in the next group I can be extremely brief.
	The noble Baroness, Lady Warwick, was very helpful to set out what she considers to be good practice with regard to administrative review. It will be important for the Minister now to go through that to say whether the Government see the limbs of good practice that she has set out as the ones that they wish to adopt. For example, she said that the entry clearance officer should provide written reasons for refusal. I hope that she would add "in the outcome of any subsequent review", as one needs to know how the process would continue. She also said that the review should allow for the clarification of the existing evidence. I hope that one would be able to submit further evidence and, if not, on what basis that would be denied. Overall, the noble Baroness has provided the good practice guide that the Government ought to follow.
	On the issue of the Pandora's box and the points system, the noble Lord, Lord Avebury, explained that last week the Government published a points-based system Making Migration Work for Britain. In another place, there was a Private Notice Question on that. I felt that it was not appropriate for me to clamour for that to be taken by way of a Statement in this House, because the Government had shown goodwill by delaying Third Reading so that we could debate it today. Therefore, I did not press for a Statement in this House, but it was so that noble Lords should be able to talk about the points system today.
	Like the noble Lord, Lord Avebury, I am grateful to Christine Lee of the North London Chinese Association for the very helpful briefing that she sent to Peers for this stage of the Bill. She makes some very pertinent points, which I would like to raise, and asks some questions that I would like the Minister to respond to. I have given advance notice of those, because they are in detail. In addition, the noble Lord, Lord Avebury, referred to the fact that Ms Lee and her colleagues had a meeting today with the Minister, Mr McNulty. It would be very helpful if the Minister could give an update on that. I have been provided with a summary synopsis of the meeting by Ms Lee, but I am not sure whether the Minister has seen that yet. We may be going to have to conclude any discussions about that by way of letter following this debate; or indeed it may be appropriate for the Minister to answer questions on that when this Bill is debated in another place this Thursday and it takes Lords amendments.
	On tier 3 of the points system, the Chinese community points out that it is important to know what will happen to low-skill workers. Will low-skill workers, including waiters, waitresses, kitchen porters and catering assistants, fall within tier 3 of the points system? The Minister will know that the Bangladeshi, Pakistani, Chinese and Indian communities place a heavy reliance on those workers, particularly in small businesses. They point out the problem areas that arise if they have to recruit from communities that do not reflect their ethnicity, such as communication, team cohesion, training needs and deployment.
	On tier 2 of the points system, will the Minister confirm what requirements will be needed for restaurant managers and chefs to fall within tier 2? Would that include those chefs and managers with at least three years' experience? The Minister will recall that Mr McNulty said categorically that chefs would fall within tier 2, but the section describing the architecture of the new system is not clear about that. It seems to set a points menu that could deny the opportunity for chefs and most managers to come here. That is at pages 25 and 26 of the Government's document.
	Would it be right to say that in practice a chef would either have to satisfy a requirement that the job offer had been made in a shortage occupation, or that the job offer passes the test that the applicant would not displace a worker in the domestic UK market, plus the additional test that he or she would be earning a minimum of £21,000 a year in the UK from a registered employer? I realise that some points can be earned by having a Masters degree or a PhD but, without intending to underestimate the ability of chefs, that does not seem particularly relevant to the employment of most chefs in this country.
	Last week, the Minister offered me the opportunity to meet her. I raised questions about this then, with regard particularly to the test of £21,000 a year as the qualifying salary. Will that £21,000 be expressed merely in monetary terms, or do the Government intend to take into account benefits in kind when calculating that qualifying salary? I realise that we have asked a lot of questions today on an opening group of amendments, but I anticipate that if the Minister is able to satisfy us, some of the remaining groups may pass a little more quickly.

Baroness Ashton of Upholland: My Lords, I am extremely grateful to noble Lords for their kind words about the work that I have done and also about the work of officials. They have been magnificent in their efforts.
	I start by saying to the noble Lord, Lord Avebury, that I made sure that the paper was sent to him on Tuesday 7 March as it was published, and he was invited to a meeting that his noble friend Lord Dholakia had with me and the Bill team on Thursday of last week, when we went through all the points that were raised. I apologise if, for whatever reason, that did not get to him or he did not get notification. As I indicated, I tried to keep my promise to make sure that noble Lords received copies as it was published, had a chance to read it, and had meetings with me and my officials to go through it. I will try to answer all the questions that the noble Lord has raised as best I can. If I fail to do so I will ensure that they are answered properly. I would not want anyone in your Lordships' House to think that I did not try, even if I clearly did not succeed.
	The noble Lord, Lord Avebury, raised the question that I want to deal with now about the independent monitor. A letter was sent to him yesterday and e-mailed, which included a suggestion that the noble Lord meet my noble friend Lord Triesman, who is concerned to pick up the points that the noble Lord raised. It has taken me a little time to achieve that because my noble friend is often out of the country, but he is very determined to support the noble Lord in the answers that he seeks on that point.
	I point out as I said in the letter that the time delay in producing the report of the independent monitor is not unusual, in the sense that we need a few weeks to sort it out. I understand that there are 59 recommendations made in the report, on some of which we have to seek legal advice. I am keen that we get as much information as possible to the noble Lord.

Lord Avebury: My Lords, I thank the Minister for her letter, but I do not accept the explanation that she gave that the officials needed time to consider all the recommendations. I do not see why your Lordships' House should not be considering them in parallel with the officials, instead of after the officials have finished with them. I should like an assurance from the Minister that the report will at least see the light of day before the other place has to consider the matter.

Baroness Ashton of Upholland: My Lords, it is very common practice in my experience as a Minister that we are allowed as a department—whatever department it is—to look at the recommendations and determine our views. That is not uncommon. There is often a lot of appropriate dialogue between the organisations concerned. The few weeks that have passed do not form a substantive delay. Although I accept that the noble Lord will never accept my views on that, I have checked that this is not an unusual or unprecedented delay. I have made the offer about my noble friend Lord Triesman, and I am sure that the noble Lord will find him receptive to his points. He will deal with them far more adequately than I could conceivably do at this point.
	I shall deal with as many of the details of the amendments as possible. I am grateful that noble Lords have used the occasion, as I indicated, to talk about the points-based system. Not surprisingly, I am going to focus quite a lot on the administrative review, because in a sense it is at the heart of the acceptance of the points-based system. There was general agreement in your Lordships' House that the points-based system is a good thing; it is substantially better than the system it is replacing, and will enable more transparent, quicker and easier decisions to be made. This is to be welcomed. On that basis, the administrative review has an important part to play.
	On Amendment No. 1, tempting though it always is for the Government to take another power unto themselves, I intend to resist doing so. The issues that the noble Lord, Lord Dholakia, raised around, for example, the unaccompanied asylum-seeker children were well dealt with in Committee. We want to ensure that we capture those areas. Yet it is not right that we need an appeal system for the new points-based system. Issues that are or could be of concern about decisions will be dealt with by administrative review, so the principle of having an appeal system falls. On that basis it would be wrong for the Government to take a power unto themselves, because it would suggest either that we did not have faith in the system, or that we planned to change it, which we do not. If a new system were to be put in place, it should come to your Lordships' House by way of primary legislation, not secondary, because these issues are of such great importance. Tempting though it might be, I will resist that amendment.
	I turn to the commencement amendments also spoken to by the noble Lord, Lord Dholakia. I listened carefully to what the Select Committee on Delegated Powers and Regulatory Reform said, and it made no comment on that clause. The noble Lord will know that I always do what it tells me. Had it told me to do something, I would have done it. It is also important to recognise that we have had a great deal of debate on this, and that we are keen to have a normal commencement provision in the Bill. We wish to do that appropriately. However, the debate around these issues will not end, and I will come on to some of the ways in which we plan to continue the dialogue.
	My substantive comments start on the issues in Amendment No. 2, and specifically answer the questions raised by my noble friend Lady Warwick, which were echoed across your Lordships' House, especially by those involved in education. I will answer her questions so that my response will be firmly on the record, before coming to some of the broader questions. My noble friend sought clarification on four questions, and was kind enough to give me advance notice of them. I wanted advance notice to make sure I answered them properly, not for any other reason.
	The first question was: if I accept that there is an element of subjectivity in the process, will the administrative review be able to consider judgments and points of law, as well as facts? We have said that we want to ensure that there is little scope for subjectivity, which I think my noble friend accepts. If a person is refused, then the entry clearance officer's letter refusing the application will set out exactly why, referring to the criteria for which points are awarded. That is part of our commitment to transparency. Someone who is refused entry clearance under the system will be able to apply for administrative review. The application for review will have to set out which aspect of the decision, as justified in the refusal letter, was incorrect. This encompasses both judgments and points of law, where they are relevant to the specific reason for refusal.
	Secondly, my noble friend was concerned with the Command Paper saying that the points-based system would be supported by review where appropriate, and asked whether the administrative review would be available to anyone refused a visa under the new system. Yes, anyone refused entry clearance under the points-based system will be able to apply for administrative review. They have to allege that the decision was made in error on the basis of the entry clearance officer's refusal letter. We are arguing the "appropriateness" point to avoid people who might be being vexatious, or who should have provided evidence in their original application. On the basis that they are saying that they want a review based on the evidence provided, everybody will be entitled to claim.
	Thirdly, on consulting fully on the design of the review, and publishing the final scheme so that we all know what to expect, one of the things that has become clear working with my colleagues in the Home Office, and especially with the officials, is their decision to involve as much as possible a broad range of stakeholders, including those from the education sector—especially from Universities UK—in the design of the detail of the administrative review programme. I hope all those invited to participate will do so fully, because this is a real opportunity. The full details of the process will be published in Diplomatic Service procedures, and will therefore be official government policy.
	Fourthly, if I accept that there will be cases where subjective judgments are involved in reaching a decision, should there be an opportunity to involve a third party—someone within the Immigration Service, but not involved in the initial decision? The noble Lord, Lord Laird, felt particularly strongly about this as well. We have got to look at the detail of the design of the system, but I accept that in some circumstances there may well be good reason for a person outside the management chain to be involved, whether at regional or national level. As my noble friend will agree, we had a good meeting with some of her vice-chancellors last week, and discussed this at length. We talked about the different circumstances that could exist where one might wish to look outside. Noble Lords will not be surprised that it is particularly relevant in financial issues. For example, we considered areas where there might have been substantive issues of fraud or other kinds of financial irregularity. That might well be such a set of circumstances. I am committed, and have committed the Home Office, to there being such circumstances, though we hope to determine what precisely they are in discussion with stakeholders. The expertise that stakeholders can bring is critical to determine that.
	There will be such circumstances, but they will be limited, because our ambition is for a transparent system. If a mistake is made, it can be overturned quickly—quickly enough that the person is not affected in their desire to come either to work or to study in this country. It will be quick, but where circumstances seem appropriate—in a clearly defined way, working with colleagues in the university sector—there will be the potential for that to be the case. I hope that gives my noble friend the strongest assurance that I can give.

Baroness Warwick of Undercliffe: My Lords, to clarify one point, my noble friend said that the administrative review scheme would be set out in Diplomatic Service procedures. My understanding of those procedures is that they are published and become effective at the same time. Is it possible that the procedures might be published in draft, so that we could look at them in advance, prior to them being published and made effective?

Baroness Ashton of Upholland: My Lords, I will commit the Government to doing that. There is no problem in doing that at all; it would be positively beneficial. As my noble friend will realise from our meeting with the vice-chancellors, there is a lot of expertise and experience, from both employers and the universities, that we want to tap to ensure that we capture the system appropriately. This may be the last Home Office Bill I ever do, but I have no hesitation in committing to that.
	I shall deal with the other issues that have been raised, particularly education. The noble Lord, Lord Avebury, asked what would be required of institutions as sponsors. Yes, sponsors will be required to report attendance. Also, visas will be granted for specific institutions, so in a sense they will be tied to that institution. Most of the institutions that have been in discussion with colleagues at the Home Office welcome this, because it gives them a greater degree of certainty. Yet there is an issue that needs to be thought about, and again there are discussions going on. We must find some way to be notified when a student has arrived but is believed to have disappeared—not that they are unwell, but have disappeared. That is important for immigration control, and officials are working with institutions to make sure that we are able to deal with those responsibilities appropriately. There is a general agreement that that is a good thing, as long as we get it right and do not make it onerous.
	Those institutions that conform with their responsibilities can expect to be rated A, and those where we find a less good record will be rated B. That will encourage the Bs to become As, we trust, in the way that they approach it. The noble Lord, Lord Avebury, identified the system from the Command Paper, and I will not repeat that at this point.
	On the point of the noble Earl, Lord Sandwich, about domestic service and slavery, which he linked, we have provisions in the Bill to prevent illegal working. We are concerned to ensure that, wherever possible, labour market needs are met from the UK market and the EU, as the noble Earl will know, so I cannot say anything specifically to him about how we might address that, except that the Home Office takes it seriously. Perhaps we can pick this up later. It should not necessarily hold up the Bill, but it certainly needs to be looked at so that we identify the problems clearly, as he has.
	The noble Lord, Lord Avebury, and the noble Baroness, Lady Anelay, raised issues about the Chinese community in particular. I note that they met with my noble friend today; I was grateful to receive two copies of the notes of that meeting. I was clearly looking puzzled, as I had not yet seen them. I have not yet had a chance to read them, but I believe it was a constructive meeting and hope it will have addressed some of the concerns raised along the way. I shall try to deal with all the points of the noble Baroness, Lady Anelay. I hope that she will leap up if I miss any.
	First, there is the question of the £21,000, and what is taken into account. The noble Baroness was helpful in our earlier discussions as to what these issues might be. Indeed, members of different communities have talked to us. On benefits, the obvious example is that somebody comes and is given accommodation, perhaps not only for themselves but for their family, and would therefore expect a lower salary. For the UK, I always think of those involved in the Church, who receive a smaller salary, but get their accommodation provided. That is also true in certain professions across the world of employment. There is a plan to find a way to allow those allowances to be taken into account, but the noble Baroness will accept that we do not want to see that as a substitute for paying people properly. There is a balance to be struck between recognising that people should be in receipt of a proper wage, and recognising the benefits. That balance is being looked at.
	The skills advisory body which will be responsible for monitoring sector shortages in all areas of the economy needs to take into account—

The Lord Bishop of Chester: My Lords, will the Minister pick up a question raised by the noble Lord, Lord Avebury, about members of religious orders who enter on a completely different basis from the stipend which a minister of religion might receive? It is good to know that the benefit in kind of housing will be taken into account in assessing the value of the overall package provided, but religious orders are international bodies. There is considerable movement between them. This applies to all the different religions. There may occasionally be problems with religious leaders being imported from elsewhere. Can the Minister give an assurance that that point is also taken into account in the points-based system?

Lord Hylton: My Lords—

Baroness Ashton of Upholland: My Lords, I am sorry but we are on Third Reading. I am not going to play Committee at this stage. I was of course going to address the point of the noble Lord, Lord Avebury. I will do it precisely now, and try to guess what the noble Lord, Lord Hylton, might have been saying to me. But I will try to stick to the rules, because we want to get through the rest of the groups of amendments.
	The noble Lord, Lord Avebury, had two questions. One was about the English language skills. There will be an expectation that an appropriate level of English will be spoken. As the right reverend Prelate rightly said, there are issues over earnings. I am referred by my officials to paragraph 95 of the Command Paper, which makes clear that we will amend requirements to enable these categories to enter. We will not expect ministers of religion to meet the usual minimum salary requirements under tier 2, for exactly the reasons that the right reverend Prelate would expect.
	The skills advisory body will be able to draw on the Skills for Business Network, and would ensure that bodies representing the ethnic cuisine sector should be engaged with their relevant sector skills councils. We want to ensure—it is a theme throughout the Bill—that those involved in small businesses, whether in the provision of the wonderful food that I love to eat or in any other small business, have opportunities to talk about the skill sector shortages within their area appropriately. We take that seriously.
	We also recognise, thinking about chefs in particular—again, a theme running through the Bill—that some skilled workers do not have paper qualifications. There is a trade-off within tier 2 against salary. I have already identified that, within salary, we would also take into account benefits and qualifications. In general—and this generality is not specifically relevant to the particular sector in question—a higher salary tends to suggest that someone is at an appropriate level of skill for tier 2. That will not always be the case, partly because of extra benefits and partly because of the area. As a generality, however, it is true.
	On lower skilled workers under tier 3, we obviously expect a lot of our requirements to be met either within the UK or the EU, but tier 3 schemes will be set up if it is clear that there is insufficient labour to meet demand. They would be quota-based, operator-led, time-limited, subject to review and from countries where we have a returns policy. Waiters, kitchen porters and others will fall into tier 3 only if the scheme that encompasses them is established. In general, we expect domestic and EU labour to be sufficient for these positions, but we will of course keep this under review to ensure that—again, in conversation with the skills sector council—we have clarity over what might be required.
	On the question of chefs and managers with three years' experience and whether they fall within tier 2, the precise model is not finally determined; that is partly because there are still conversations to be had, particularly with small business and those involved in particular sectors. We are hoping to end up with a system where, in the round, people who fail to have points in one area—because they do not have paper qualifications, for example—will get points in another area—because, for example, their salary level is higher—so that we end up with a balance. We have more work to do, working with our stakeholders, on getting that balance right. The Command Paper makes it clear that we would seek to do that. But that is basically how we would seek to do it, not least because it gives us a clear, transparent system where people can identify for themselves that they have got the right number of points before they apply. That is particularly relevant to the education sector, though not exclusively. One of the issues I hope will be addressed by the new system is that people will know that they have got the right number of points, and will therefore apply. It may cut out those who wish to exploit the system, an issue that we are concerned about for some countries. It also ensures that we increasingly get successful applicants, because they know in advance that they are able to apply. That would be of great value.
	We cannot make the required changes under rules only, because we need primary legislation first. I seem to remember answering that question a couple of times before. I hope that the noble Lord, Lord Avebury, will feel that I have addressed it. I think I have addressed Amendments Nos. 1, 2, 35 and 36, so it is time for me to sit down. I hope on that basis that the noble Lord, Lord Dholakia, will feel able to withdraw his amendment.

Lord Dholakia: My Lords, I am grateful to the Minister for her explanation. I have been reminded by my noble friend Lord Mar and Kellie that I should not make another speech, having already spoken. I shall resist the temptation, and simply comment on some of the issues that the Minister has raised before withdrawing my amendment.
	I was disappointed that we did not have the opportunity to listen fully to the contribution of the noble Lord, Lord Laird, on the grounds that—we were told—he was making a Second Reading speech. This is the first time we have had the opportunity to discuss the points system. It is right that we should have discussed it fully, and I do not think the Second Reading excuse is the right one in this case. Let us hope that there will be another opportunity, particularly in the other place, where there could be a fuller discussion on the basis not only of the Government's own document but—I very much hope—of the report of the independent monitor, who obviously has made observations on this matter. When the Home Office publishes that document, it will be clearly demonstrated whether an administration review is needed. If the independent monitor is satisfied, we need not take the case further, but I suspect that the independent monitor has made the type of comments that makes an administrative review very important indeed.
	The Minister referred to the appeals system. If appeal rights are retained under Clause 1, why is that not possible under Clause 4? We have been told about the points system. That system, or any system, can be effective only if it has proper means of review at various stages. I do not believe that any system can be foolproof, which is one reason why we strongly support the amendment of the noble Baroness, Lady Warwick.
	My second point relates very much to the issues raised by the noble Baroness, Lady Anelay. The Minister has given an explanation in relation to the concerns of the Chinese community and other communities in a number of meetings. Let us hope that that can be monitored over time to see that it does not have an adverse effect, especially when we consider the substantial contribution that such communities make to the economy.
	The Minister has rightly explained how the system will work, especially in relation to some of the concessions in the type of administration review that we are looking for. We shall certainly examine it carefully. Obviously there will be an opportunity to put questions to the Minister in the future. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 2 not moved.]

Baroness Anelay of St Johns: moved Amendment No. 3:
	Page 3, line 9, at end insert—
	"(3) Within the period of three years beginning with the commencement (for any purpose) of subsection (1), the Secretary of State shall lay before Parliament a report about the effect of that subsection; and the report—
	(a) must specify the number of applications for entry clearance made during that period;
	(b) must specify the number of those applications refused;
	(c) must specify the number of those applications granted, after an initial indication to the applicant of intention to refuse the application, as a result of further consideration in accordance with arrangements established by the Secretary of State;
	(d) must describe those arrangements;
	(e) must describe the effect of regulations made under section 88A(1)(a) or (b) as substituted by subsection (1) above;
	(f) may include other information about the process and criteria used to determine applications for entry clearance; and
	(g) may record opinions."

Baroness Anelay of St Johns: My Lords, I tabled a similar amendment on Report, when the Minister said that the Government were minded to accept the principle behind the amendment but that it was technically incorrect in its drafting. I am grateful to the Minister for giving me the opportunity to use the resources of the Home Office Bill team to have it redrafted in a more appropriate form. I put my thanks to the team on record.
	The drafting that the Home Office Bill team came up with fully meets the objectives of the amendment that I tabled last time. It is important for Parliament to have the guarantee that it will have the chance to hold the Government to account for the whole system of administrative review of applications for leave to enter the UK to study or work—in other words, a chance to review the operation of the Government's new points system to which we referred in the previous group of amendments. There is also the chance to review the abolition of appeals against refusal of a visa for work and study.
	The amendment requires the Secretary of State to lay a report before Parliament within a period of three years that kicks off as soon as the Government bring Clause 4 into operation. I chose a period of three years as being what I hope is an appropriate target time, as I want Parliament to be able to review the following matters: first, how the phasing in of the points system is working; secondly, how the training of the entry clearance officers is improved; and, thirdly, how they are coping with what should be a more objective way of allocating visas. The Government have said previously that they expect a roll-out to tier 1 in the next 18 months and then they may go on to tier 2. The Minister gave us further information about the roll-out time today.
	The Government will have to put in place training and guidance of allocation on points very early, otherwise it will not work. I expect that a debate after three years of the scheme should give a fair reflection of concerns and, one hopes, the successes of the new system. If we had to wait until the scheme has been fully rolled out, we might have to wait for so long that it would be too late to make suggestions about improvements to it, and the rot might have set in, so it is important to get early intervention. As I say, we hope that it will be successful, but experience means that a lot of tweaking always has to be done. I hope that my amendment will give the chance for that tweaking to take place at the right time.
	The amendment would require the Secretary of State to set out an extensive range of information in the report, including the number of applications made in the period under review, the number refused, and the number granted after initial refusal was reversed as a result of further consideration by the administrative review procedure that the Government had put in place. I hope that proposed new paragraphs (e), (f) and (g) will give Parliament the opportunity to debate more generally how the system itself is working, and the reactions to it of both the users and the staff operating the system, including the views of the entry clearance monitor. I beg to move.

Baroness Carnegy of Lour: My Lords, I endorse what my noble friend said. Anyone who has used a points system—many of us have in different contexts—knows that they can produce hugely helpful results, but also distortions and unfairness as different human beings operate the same system in different ways and places. It seems extremely important that it be possible to look at the system after not too long; three years may well be the right time. My noble friend has suggested the aspects that should be looked at, and I am encouraged by what she said to think that the Minister may accept the amendment. That would be wonderful. The universities would be pleased if that happened. I hope that we hear that the amendment will be accepted.

Baroness Warwick of Undercliffe: My Lords, I congratulate the noble Baroness, Lady Anelay, on tabling the amendment to secure a review after three years. Many outside this House have been grateful to her for her representations of their concerns. I fully support the amendment, which would give the House an opportunity to return to issues that have clearly been of some contention, and to consider them in the light of experience. I agree with her that the collection of better data on the number of refusals will be central to ensuring that, should any problems emerge with the new system, a management information system is available to help us address issues as they arise.
	I was interested in what the noble Baroness said on proposed new paragraph (c) of her amendment, because it appeared to suggest that decisions would be provisional in some way in the first instance—that an entry clearance officer could tell an applicant that they were minded to refuse, and give the applicant an opportunity to object at that point. Is that what she had in mind?

Lord Dholakia: My Lords, we certainly support the amendment. It is right that the points system be reviewed three years after coming into force. I hope that that is not the only time the review takes place, and that there will be an opportunity at some stage for the independent monitor to see how the system is operating. On the basis of reports being available, we could then determine what further action was necessary to strengthen the points system.

Lord Brooke of Sutton Mandeville: My Lords, it is always a pleasure to see virtue rewarded. Some of us have come and gone in the context of this Bill—we have not always been present but have taken a lively interest in it—but my noble friend Lady Anelay has constantly shone like a lighthouse. It is encouraging to find that the illumination is still being bestowed on Third Reading.

Baroness Ashton of Upholland: My Lords, illumination has reached even these Benches. What could I do other than accept the amendment moved so ably by the noble Baroness, to whom, like the noble Lord, Lord Brooke, I have already paid tribute for her work? I am delighted that the Bill team was able to work with her to accept the amendment.

Baroness Anelay of St Johns: My Lords, I hope that everyone is as happy with me tomorrow when we return to a different kind of Bill; that would be a miracle. I am grateful for everything that noble Lords have said. I agree with the noble Lord, Lord Dholakia, that it is important that there are other opportunities to debate these matters in both Houses; I hope that the amendment provides that guarantee.
	I shall answer the noble Baroness, Lady Warwick of Undercliffe. By this amendment, I am simply trying to tackle the situation whereby someone has been refused, but the administrative review itself has later reviewed that refusal and overturned it.
	I also want to be able to get to those statistics. That was the reason for drafting that section. I am grateful to the Minister. I commend the amendment.

On Question, amendment agreed to.
	Clause 15 [Penalty]:

Baroness Ashton of Upholland: moved Amendment No. 4:
	Page 7, line 21, leave out "effluxion" and insert "passage"

Baroness Ashton of Upholland: My Lords, I dedicate this amendment to the noble Baroness, Lady Carnegy of Lour. I am delighted to see her back in her place. The noble Baroness rightly put me on the spot suggesting that the fabulous word "effluxion" was perhaps not in keeping with the Government's or my stated aim of using simple English where simple English will do. Parliamentary counsel watched me squirm and recognised, as he said, that this was not a term in common usage. Therefore, I propose that we take out the word and insert "passage" which tells everyone what we seek to do, with grateful thanks to the noble Baroness. I beg to move.

Baroness Carnegy of Lour: My Lords, it is wonderful for a fleeting moment to feel that one has not lived in vain. I thank the Minister very much for causing the provision to be changed. It was a slight flaw in the Bill. It is a great improvement. I am very grateful to her.

Lord Avebury: My Lords, I, too, am grateful to the Minister for listening to what was said in Grand Committee about the use of the word "effluxion". I can only hope that the parliamentary draftsman has made a note to substitute "passage" for "effluxion" where it occurs in other statutes and statutory instruments, except perhaps where reference is made to the exercise of options as in the Finance (No. 2) Act 1992, or the expiration of tenancies or licences as in the Utilities Act 2000, or of contracts of employment as in the Schools Standards and Framework Act 1998. It has something of a pedigree in those contexts but I am not sure whether it is necessary to use such an arcane word anywhere if "passage" fits the need here.

On Question, amendment agreed to.
	Clause 19 [Code of practice]:

Baroness Anelay of St Johns: moved Amendment No. 5:
	Page 10, line 4, at end insert—
	"( ) Before an order can be made under subsection (2) the Secretary of State shall consult with employers likely to be affected by the code of practice and shall take account of the results of that consultation."

Baroness Anelay of St Johns: My Lords, I have tabled this amendment to enable the Minister to meet a commitment which she gave on Report that the Government would provide noble Lords with an updated draft of the code of practice regarding the civil penalty for employers. I am grateful to her office for sending me a copy of the latest draft which was published on 6 February.
	I understand that there are four main changes which reflect issues that we raised during our debates in Grand Committee. I should be grateful if the Minister could highlight those points for the assistance of other noble Lords, but in particular for those who will read in the future a record of these debates.
	I should also be grateful if the Minister could address a couple of points raised by the Commission for Racial Equality in a Third Reading briefing that I received from it last week. First, it remains concerned that civil penalties and repeat checks on certain employees subject to immigration control could be divisive and is not in the spirit of race relations legislation; and that civil penalties may make employers less likely to employ legal migrants or anyone, including UK-born ethnic minorities, perceived to have an immigration issue.
	Those points were raised properly at Second Reading. Reflecting the further briefing received last week, my question is this. What work do the Government intend to carry out as soon as the Bill receives Royal Assent to address these concerns and resolve any unintended consequences of the introduction of the civil penalty? For example, do they have plans to set up regular meetings with the CRE to monitor any problems? The second issue it raised refers to the fact that Clause 23 states that the Secretary of State must consult the CRE and consider representations before placing the code of practice before Parliament although the code of practice can be laid before the House with or without modifications to reflect the representations. The CRE points out that it is unclear how the new code will relate to the 2005 CRE statutory code of practice on race equality and employment. What work are the Government now doing to see how the two codes will be reconciled before they place the code of practice before Parliament? I beg to move.

Lord Dholakia: My Lords, we support the amendment requiring prior consultation with employers on the code of practice and factors to be considered in setting the civil penalty. As part of the points system, we have already a range of employers, the TUC, the CBI and others to consult on how the points system can operate to identify the needs of this country. It is equally right that they should be consulted in terms of the liability which may be faced by employers in this matter. The Commission for Racial Equality is right in drawing attention to its own code of practice and how we make sure that the system is monitored regularly and that the report as to how this affects employers generally is available independently of the Government.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Baroness for giving me the chance to make sure that we have on record the issues which have been raised. I believe that it has been made clear as we have brought the Bill through your Lordships' House and another place that there will be a full, detailed public consultation on the illegal working measures proposed. It is not necessary to create a statutory requirement on the Government to consult as that is done as a matter of course whenever options are being considered for new regulations on business. The consultation will be undertaken in accordance with the better regulation executives code of practice on consultation which sets out the basic principles for effective government consultations. Therefore, the consultation will last for a minimum of 12 weeks. The responses will be analysed with particular attention paid to possible new approaches to the questions consulted on, further evidence given on the impact of the proposals, and the strength of feeling among particular groups. A report including a summary of responses received during the course of the consultation will be produced and published at the end of the consultation and a copy placed in both Houses and published on the IND website. We followed this practice in relation to the legal working measures in the 2004 order and will make sure that we do the same now. I hope that we have made it clear that we are receptive to comments made during the passage of the Bill. The same spirit will apply to the consultation exercise.
	The draft code of practice under Clause 19 was initially published in October. It has been revised and republished in the light of comments made in Committee. It contains the following changes: a revised definition of illegal employee to reflect the government amendments tabled on Report in this House in relation to cancellation, curtailment and revocation of leave; it explicitly states that consideration of the fairness of the financial penalty to be imposed must be made by the Secretary of State together with the proportionality of the amount; that if objection to a civil penalty is made the Secretary of State must consider evidence as to the effect of the civil penalty on the viability of the employer's business; and it explicitly states that consideration will be given to requests from employers that payment of a civil penalty may be made in monthly instalments over a period of 12 months. As I have indicated, the draft code will be subject to full public consultation and may well be amended further in the light of the results of that consultation.
	I turn to the issues raised by the noble Baroness regarding the CRE. The CRE had sight of the original draft before it was published. We welcome its active participation in the consultation exercise, in particular over compatibility issues between Clause 23, the code and the 2005 CRE statutory code of practice on race equality. For example, the CRE might need to think about whether it needs to amend its statutory code in light of the Bill. We discussed with the CRE the fact that civil penalties were coming before the code was published. I hope that there will be a chance now to consider that again. It is a member of the illegal working stakeholder group chaired by my right honourable friend Tony McNulty. We shall work with the group on the implementation of civil penalties, thereby ensuring that it is indeed participating fully. We shall work with it in the industrial tribunal system and researches to monitor compliance with the statutory non-discrimination code.
	I hope that that meets the commitment I made and that on that basis the noble Baroness will feel able to withdraw her amendment.

Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for her further clarification. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 21 [Offence]:

Baroness Ashton of Upholland: moved Amendment No. 6:
	Page 10, line 27, leave out "effluxion" and insert "passage"
	On Question, amendment agreed to.
	Clause 34 [Offence]:

Baroness Ashton of Upholland: moved Amendment No. 7:
	Page 17, line 32, at end insert—
	"(1A) But—
	(a) a person who fails without reasonable excuse to comply with a requirement imposed under section 32(2) or 33(2) by a constable in England and Wales or Northern Ireland otherwise than in relation to a reserved matter (within the meaning of the Scotland Act 1998) shall not be treated as having committed the offence in Scotland (but has committed the offence in England and Wales or Northern Ireland), and
	(b) a person who fails without reasonable excuse to comply with a requirement which is imposed under section 32(3) for the purpose of complying with a requirement to which paragraph (a) applies—
	(i) shall not be treated as having committed the offence in Scotland, but
	(ii) shall be treated as having committed the offence in England and Wales or Northern Ireland."

Baroness Ashton of Upholland: My Lords, this amendment seeks to ensure that Clause 34 does not breach the Sewel convention. As noble Lords will be aware, Clause 34 makes it an offence to fail to comply with a police request for passenger, crew, service or freight information under Clauses 32 or 33. Carriers will commit an offence unless they can prove that they had a reasonable excuse for not supplying the information. Passengers and crew members will also be guilty of an offence if they fail to provide information to the carrier without reasonable excuse.
	To comply with the Sewel convention, the police in Scotland can only require passenger, crew, service or freight information for police purposes that are or relate to reserved matters within the meaning of the Scotland Act 1998. The police in England, Wales and Northern Ireland can require passenger, crew, service or freight information for any police purposes. The reason for this difference—I am conscious that the noble Baroness, Lady Carnegy of Lour, and the noble Earl, Lord Mar and Kellie, are present in the Chamber—is that police powers are in general a matter devolved to the Scottish Parliament
	A concern has recently arisen that Clause 34 is insufficiently clear as to whether a passenger or crew member who refuses to provide information to a carrier in Scotland in response to a request from a police constable in England, Wales or Northern Ireland for police purposes, would have committed an offence under English or Scots law. If the request had been made for police purposes, which would, in Scotland, not be police purposes in relation to reserved matters, and the failure to comply was an offence committed under Scots law, this would mean that a UK statute would be creating an offence in Scottish law in relation to matters that are not reserved—namely, general police purposes—thereby breaching the Sewel convention. This amendment seeks to put the matter beyond doubt.
	With that rather technical explanation, which is necessary for Hansard purposes, I beg to move.

Lord Avebury: My Lords, I think that I am right that Clauses 32 and 33 implement an EU directive under which carriers will have to notify the authorities of passenger details of all flights ending on EU territory, which is similar to the arrangements in place in the US. These powers are being extended to domestic flights starting and ending in the UK under Clause 9 of the Police and Justice Bill. I would be grateful if the Minister could say whether this procedure of amending one Bill in another when both are going through Parliament at the same time has ever been adopted before, and why it was necessary to do that in this case. It could not be that the Government decided that it was necessary to have information about domestic flights only when this House had already considered this Bill on Report, because the Police and Justice Bill was published on 25 January.
	Whatever the explanation, if the carriers have to provide PNR information in advance, any failure on the part of the operator to comply with Clause 32(2) or Clause 33(2) would be inadvertent, and the operator would have a reasonable excuse. The data might not have been entered, or there might have been a fault in the software, and the penalties would not bite. On Report, we referred to my noble friend Lord Carlile's strictures on lax security at small airports, as reported at col. 565, and the Minister slid out of answering that question directly by saying that there were resource implications of using these powers to monitor all flights at all airports. She then wrote to my noble friend Lord Dholakia on 23 February to say that under the e-borders programme, the request for PNR information would be made for all scheduled and charter flights and all cargo services arriving in or departing from the UK. I presume that, under the Police and Justice Bill, that is now to be extended to domestic flights. I would be grateful if the Minister could confirm whether the operators have been consulted on that, and whether they have agreed to these new requirements.
	On Report, my noble friend Lord Dholakia also raised the question of rendition, which took the Minister by surprise. She did not appear to grasp the relevance of what he was saying to the question of how passenger information might be used to prevent or deter serious crime. Since then we have learnt from Adam Ingram's reply to my right honourable friend the leader of the Liberal Democrats that at least 14 CIA flights landed at Northolt and Brize Norton, although the Foreign Secretary said previously that he was unaware—

Baroness Ashton of Upholland: My Lords, forgive me, but at Third Reading it is pertinent that the noble Lord refers to the amendment and not to a debate on the substantive issues of either that clause or other clauses that might be relevant to the Bill. We should stick to the procedure. I am perfectly happy, as he surely knows, to debate issues of substance outside this House, but if he wished to return to this issue, he could have tabled an amendment, to which I could have responded fully at Third Reading.

Lord Avebury: My Lords, we are talking about,
	"a person who fails without reasonable excuse to comply with a requirement"—

Baroness Ashton of Upholland: My Lords, no, we are referring to my amendment to deal with a concern about breaching the Sewel convention. The noble Lord could have put forward an amendment to deal with other matters under the clause.

Lord Avebury: My Lords, the Minister interrupted me when I was reading out her amendment, which refers to,
	"a person who fails without reasonable excuse to comply with a requirement".
	Surely I am entitled to talk about the circumstances in which a person might not have complied with this requirement, when an operator has failed to notify the authorities of the passenger details of a flight entering the United Kingdom from abroad or starting and finishing in the United Kingdom—that is what I was talking about. It would be extremely important to know whether the CIA flights, referred to by my noble friend Lord Dholakia, would be covered by the provision; if so, the persons who operated those flights would be subject to the penalties in the Minister's amendment.
	Surely I am also entitled to refer to correspondence that has taken place since Report between the Minister and my noble friend Lord Dholakia, which we could not have discussed previously and which arises directly from this amendment. I was going to say that, in her letter to my noble friend on 23 February, the Minister said that under the Chicago Convention we have the right to search aircraft of other contracting states and that we have not and will not approve of the transfer of individuals through the UK to places where there are substantial grounds to believe that they would face a risk of torture. We would not assist in any case where to do so would put the UK in breach of international law, including the convention against torture.
	I only wish to ask the Minister, if I may, whether, since we now know of these flights, the police will require the CIA to provide passenger information using the powers of Clause 32(2), considering that unless there is another, more convincing explanation than we have had so far, there may be grounds for believing that persons on these flights are being conveyed to some other jurisdiction, with a view to committing offences under our domestic law, Section 134 of the Criminal Justice Act 1988.

Baroness Carnegy of Lour: My Lords, my understanding of the amendment is that it simply puts right the problem of a United Kingdom Bill that uses police powers when policing in Scotland is a devolved matter. The process that the Minister has had to go through to put this right seems quite elaborate. Perhaps the Government should consider whether they can in some way alter the law in general, so that when this matter crops up in other Bills, such an amendment does not have to be made. I should think that it is possible to amend the Scotland Act 1998 in such a way that it covers future Bills. This matter will crop up all the time as the police operate across the UK, particularly on terrorist and asylum matters.

The Earl of Mar and Kellie: My Lords, does the Minister know whether this Motion went through the Scottish Parliament unanimously or with some opposition?

Lord Hylton: My Lords, I am sure that the Minister will bear in mind that no Parliament can bind its successor.

Baroness Ashton of Upholland: My Lords, I am not entirely sure that I understand the relevance of the noble Lord's comment. If I may, I shall reflect on it. The noble Baroness, Lady Carnegy, was, I think, referring to whether there was a way to ensure that what is already in statute about the Government here and the Scottish Parliament might be dealt with more easily. That is a valid point on which I shall reflect.
	As I said to the noble Earl, the Motion did not go through the Scottish Parliament because it did not need to. The basis on which the measure is drafted means that we do not need to do that. If I may, I shall explain that to the noble Earl separately.
	The noble Lord, Lord Avebury, knows perfectly well that if I can address his concern, I will do so. I intervened because I hope that the noble Lord will recognise that my briefing from the Home Office is entirely to support the amendment before your Lordships' House. He widened the debate substantially. I do not believe that I have done anything other than seek to address every concern that he has put before your Lordships' House, both within and outside this Chamber, and I shall continue to do so. I shall read with great care the points that the noble Lord has raised and ensure that he receives an answer on this occasion, as on every other.

On Question, amendment agreed to.
	Clause 40 [Searches: contracting out]:

Lord Avebury: moved Amendment No. 8:
	Page 21, line 37, leave out subsection (5) and insert—
	"(5A) On an application made to him under this section, the Secretary of State may certify a person other than a constable or officer of Revenue and Customs as an authorised person.
	(5B) The Secretary of State may not issue a certification of authorisation to a person as specified in subsection (5A) unless he is satisfied that the applicant—
	(a) is a fit and proper person to perform the functions to be authorised; and
	(b) has received training to such standard as the Secretary of State considers appropriate for the functions to be authorised."

Lord Avebury: My Lords, in this group of amendments we return to the question of who should be authorised to arrest, detain and search passengers arriving at United Kingdom ports of entry, or the juxtaposed control force at Calais and Dunkirk, which began operations on 1 March 2004, and in Brussels at the Gare du Midi, Paris, Lille and Calais Fréthun, for passengers on Eurostar, since early 2004. Your Lordships may recall that we expressed particular concern about the delegation of those powers to private contractors at the juxtaposed controls, in particular, where the person exercising the power will be a foreign citizen subject to foreign laws and to only intermittent oversight by the Chief Inspector of Prisons and the Children's Commissioner.
	When the Chief Inspector of Prisons appeared before Sub-Committee F of your Lordships' European Union Committee on 1 February, she said that she had just produced a report on the Calais arrangements. She did not know what others were envisaged, but she had the power to inspect Calais and had just done so. Will the noble Baroness confirm that the chief inspector and the Children's Commissioner have the power to go into all the other juxtaposed control points that I have mentioned?
	The chief inspector went on to say that she did not believe that there were sufficient measures in place to take account of the special needs of children in terms of the decision to detain, the effect of detention or removal and what happens afterwards. She expressed the view that the Children's Commissioner also had concerns about the treatment of children and what happens when they are removed.
	The chief inspector says that she is not satisfied with the arrangements for Calais and that she has not looked at them anywhere else. So I think that we were justified in raising those concerns both in Committee and on Report. We understand that the Children's Commissioner has been to Calais and that he has been in touch with his French opposite number. Is the noble Baroness satisfied with the arrangements made for vetting staff to be employed by private contractors? Does she know whether there is an effective sex offenders register in France, such as will ensure that no person is employed in a capacity that will give him those powers?
	The Minister said:
	"All persons will be checked for the existence of a criminal record in France. These records contain all charges or other issues around sex offences".—[Official Report, 7/2/06; col. 577.] 
	We are not yet in a position to assess the merits of the French system of child protection, but there have been criticisms of some aspects of immigration detention at ports by the French from the Défenseure des Enfants. In particular, she criticised the treatment of children held at Roissy airport in January 2005 and, just last month, she received a letter from the Collectif de Soutien d'Urgence aux Réfugiés about the plight of unaccompanied children from abroad in Calais. Previously, we spoke about the controls at Calais, but there are other places in France where there are juxtaposed controls. In addition, we should not overlook the Gare du Midi, in Brussels, where completely different arrangements may be in place. We know nothing about whether there is a Children's Commissioner in Belgium or whether there are arrangements for ensuring that people employed at the Gare du Midi are subject to sufficient controls as we would see them in England.
	The Minister said in her letter to me of 23 February that, since the control over who accesses the UK control zone in northern France is solely a matter for the UKIS, we would extend the right of access to the Children's Commissioner. I repeat the question: do the Children's Commissioner and the chief inspector have the same rights in the other control zones in France and Belgium?
	The Minister also said in her letter that the code of conduct applying to contractors' staff with those powers would be the same as it is for detention custody officers, but that code was part of the operational policy standards and procedures, which are agreed between the contractor and the detention services, which,
	"follow the principles of PACE but cannot be placed in the public domain for reasons of commercial confidentiality".
	I want to challenge that statement; this is an additional reason why we are wary of the use of private contractors. We do not agree that commercial confidentiality should be used in that way. As long as those services are carried out by public servants, we know what code of conduct they must observe but, now that the operations are being privatised, the code is secret and we must rely on a general assurance about the principles on which it is based.
	The exemption of information provided in confidence to a public authority under Section 41 of the Freedom of Information Act 2000 is not absolute. It can be overridden under Section 2 if the public interest in disclosure outweighs the public interest in maintaining the exemption, as it manifestly does in this case. After all our debates in which concern has been expressed on all sides about the use of private contractors to arrest, search and detain people, including children of any age, whether accompanied or not, I cannot imagine a clearer case where the disclosure of information would be more essential if confidence in the proposals is to be sustained. I invite the Minister to reconsider the matter in that light, giving her notice that, if necessary, I will take the matter to the Information Commissioner.
	The fact is that neither Parliament nor the media nor NGOs will be able to scrutinise what happens in France or Belgium, and it is not likely that if there are irregularities members of the public will draw our attention to them, as often happens in this country. The magnitude of the powers being given to private contractors to deprive people of their liberty is being acknowledged by making the exercise of those powers subject to the Independent Police Complaints Commission, although it would be a resourceful complainant who discovered the existence of that right and managed to log a complaint during the short time for which he would be detained.
	As the noble Lord, Lord Brooke, commented in Grand Committee, those are powers more extensive than those that Parliament gave to uniformed community support officers under the Police Reform Act 2002, after what the noble and learned Lord the Lord Chancellor described as a long and hard debate. This is too far. I beg to move.

Baroness Turner of Camden: My Lords, I moved a rather similar amendment previously, on the basis of a letter that I had received from the Public and Commercial Services Union. The union appears also to have written to the Joint Committee on Human Rights, and a copy of its letter appears in its 11th report of this Session. It is concerned about a loss of professionalism.
	It is on that point that I wish to speak. Although I have deep reservations about contracting out to private operators of any portion of what is a very important public service, the desire of the union to maintain the professionalism of the service is very important and could be met by Amendment No. 8. I ask the Minister to consider that carefully, because the union has something important to say in the letter that had already been before the Committee when I spoke to it earlier and in its submission to the Joint Committee on Human Rights.

Lord Hylton: My Lords, I have added my name to the amendment. Before I come to it I would like to say to the Minister that she was unable to guess what was in my mind in the course of the first group of amendments. Perhaps I may briefly say to her that it was the point of the noble Lord, Lord Avebury, about competence in English for people seeking visas to enter this country. That point is well known to the Home Office and is extremely relevant to imams of the Muslim faith who are imported to this country to hold particular posts here. It is important because they need to be able to relate to the authorities and to society in general and they need to be able to advise their faithful on how to relate. I hope that that point will not be overlooked.
	I turn to Amendment No. 8. This is the first time that we come to the important point of a drafting nature about the Secretary of State acting only when he is satisfied. We will come to it again later. It avoids the sloppy drafting about the Secretary of State being required only to think. Having said that, the noble Baroness will appreciate that the amendment brings in only modest differences from what is with us in the Bill's existing text. The important thing about it from a practical point of view is that it provides a safeguard for what happens when persons who may be vulnerable adults in the language employed by the UNHCR—or they may be children—are found in the course of searching ships, aircraft and vehicles.
	I am sure that the whole House will remember the terrible incident at Dover when a lot of Chinese people fell out of a lorry having been frozen to death or suffocated. Very awkward situations can arise, which is why a high standard should be required of those who are undertaking such tasks. Finally, as far as I know the Government have given no reasons for a lowering of the standard to be expected of the people undertaking these tasks. So on all of those grounds I trust that the amendment will commend itself to the Government.

The Earl of Listowel: My Lords, I rise to speak to Amendments Nos. 9 and 10 standing in my name and that of the noble Lord, Lord Avebury. The effect of the two amendments is to maintain the status quo as regards arrest, detention and search of individuals in these circumstances. Among those individuals will be some of our most vulnerable children, as noble Lords have said and as the Minister emphasised in her comments at earlier stages. It is vital that the officers involved are adequately equipped and checked to manage the children with sensitivity when they are found.
	The amendments are tabled to assist the Minister to fulfil the undertakings she previously made to consult on the matter and to report on those consultations.

Baroness Ashton of Upholland: My Lords, I am grateful to noble Lords for raising the issues. I could not agree more about the principle of having high standards. That includes, as the noble Earl, Lord Listowel, said, making sure that people are competent and understanding about dealing with children. The noble Earl and I discussed that point earlier today: they are potentially the most vulnerable children.
	I turn to the point made by the noble Lord, Lord Hylton, about an earlier amendment. I read his mind sufficiently to have obtained the answer but I did not read it out, which was a fundamental flaw in what happened. As he said, it was about ministers of religion in tier two being required to show evidence of English language skills. They will have to speak an appropriate level of English. That is a requirement. I apologise; but at least I got 50 per cent of the way there, if not the whole way.
	I do not accept Amendment No. 8 because it is not necessary. We have already said that the Secretary of State has to consider each individual's level of training and suitability before issuing authorisation. The certification in a sense does not add anything to the process but I take what is underneath the amendment to be the opportunity to talk again about some of the principles within the legislation. We have to begin from an understanding that we are not delegating responsibility for these activities and the proposals will ensure that the borders receive additional resources. The operation of the UK border remains in the hands of the UK immigration authority. Noble Lords will recall that we spent some time on Report and particularly in Committee talking about the fact that it is possible to consider certain jobs to be carried out by people outside the Immigration Service and the type of expertise that will be necessary. That led us in a sense to being sure that we had the right level of expertise within the contract being given out by my right honourable friend the Secretary of State and ensuring that we do not hand over responsibility to private contractors. We retain responsibility and people are properly trained and understand the functions and roles with which they will be concerned.
	That is a fundamental part of what is being considered here. The noble Lord, Lord Hylton, raised issues about language, which I will address before I come to talk about children. If the person detained does not speak English, they will be transferred to the offices of the UK Immigration Service, where there are facilities for the language line—a 24-hour translation and interpreting service. So their needs will be met in that way. Equally, a contractor who is brought in must be able to speak sufficient English to be able to converse with the officers of the UK Immigration Service, under whose supervision they will operate, and to be able to carry out their functions properly. It is inherent in the requirement that you have to be fit and proper for the purpose.
	We talked in Grand Committee about the strict safeguards that will apply to the recruitment and the work of the contractors. These include security checks, which will be undertaken in both the UK and France. The training will include cultural awareness, race relations, the legal framework, interpersonal skills and care for vulnerable detainees, including—perhaps I would say especially—unaccompanied minors. The French police will screen all contractors who work on the post, and will check criminal records, including those for sex offences. As noble Lords know, no freight searching is envisaged anywhere else other than at Calais port. There is no freight at the Gare du Midi, so that is not relevant in this context.
	The noble Lord, Lord Avebury, asked about the inspection carried out by the Chief Inspector of Prisons and the statutory right to inspect places of detention. Of course there is a statutory right there. The Children's Commissioner does not have a statutory right, but would be welcomed. In fact, an invitation has already been issued to him. He has not, to my knowledge, been to Calais. I will check that; I am pretty certain that he has not been, but he is invited to visit to have a look at what is going on there.
	I also indicated on Report to the noble Earl, Lord Listowel, that my honourable friend Tony McNulty would meet the Children's Commissioner to discuss these clauses, and he has done so. The Children's Commissioner wanted further information, which has been sent to him. We have also invited him to view the Immigration Service, as I said, and to look at the care of unaccompanied children at Heathrow Airport, which may be an area of particular interest.
	As the noble Lord, Lord Avebury, said, I told him in a letter that we will not award any contract to private contractors until the Bill is ratified, but we want to identify a contractor through an open and fair competition that will require any potential bidder to submit references and their work-related history for verification. We further propose that a contract will be awarded on the same basis as that issued to detention custody officers. Firms will have to operate in accordance with their operational policy standard and procedures that are agreed with the IND's detention services department.
	I note what the noble Lord said about what I said about commercial confidentiality. It is very common practice to retain commercially sensitive information, and we will of course put all that we can into the public domain. The noble Lord will probably know that I have responsibility for the Freedom of Information Act in my department, so I am very familiar with Section 2 and some of the issues that it raises, as well as with Richard Thomas, who does a sterling job as the Information Commissioner. I am very happy to talk further to the noble Lord about this, but I am clear that commercial confidentiality is always relevant. The noble Lord, Lord Avebury, is right that that lends credence to his view that it should be kept in the public sphere, but we are trying to be as open and transparent about the work that the contractors will be doing. We are trying not to usurp the work of the Immigration Service or to de-professionalise the work of the professionals, but to recognise the particular functions that can be undertaken within a very clear set of guidelines and to a clear contract. Expectations will be high, and I think that we can reassure the noble Lord that there will be absolute clarity about the vetting of each individual. We will continue to talk about that because of my particular interest in freedom of information.
	I take what my noble friend Lady Turner said about the Joint Committee on Human Rights. There is no desire, as I have said, to have anything other than a very professional service. I believe that by bringing in contractors to carry out particular functions, we can professionalise the service even more by allowing those who need to concentrate on particular issues and particular aspects of the work to do so more effectively.
	I want to devote a little time to talking about children, a subject which the noble Earl and I have returned to over the years, often late at night; indeed, we will return to it later in our consideration of the Bill. I have been very grateful for the noble Earl's time. It is important to ensure that we give careful consideration to issues involving children. As I said to the noble Earl, the Immigration and Nationality Department has the Children's Champion, which is new. We will ensure that the contractors' training is appropriate and that children who need support from social services get it as quickly as possible. These children could be very vulnerable. If they are unaccompanied, they may even try to run away, and we will ensure that people know how to handle them properly, that we lessen their fears, and that they get the proper support as quickly as possible. We will involve the Children's Commissioner, as we have sought to do already, but, as the noble Earl and I discussed a few hours ago, I am conscious, as he pointed out to me, that the Children's Commissioner has a huge amount to do, so we will do this sensitively and in collaboration with him so that he feels he has the right level of information and involvement.
	I make a commitment that I will keep the noble Earl in touch with those issues and that we will consider any questions that need to be further addressed. I absolutely commit that the Government are very alive to the sensitivities, especially around children, that have been raised. We want to make sure that this contract is awarded properly; that there is transparency to ensure that that is the case; and that we are very sensitive to ensuring that this job is done well by contractors, thus enabling the professionalism of the Immigration Service to continue within and under their control. I hope that that will enable the noble Lord to withdraw his amendment.

Lord Avebury: My Lords, I am most grateful to the noble Baroness for her assurances, which, to some extent, repeated those that she has already given. But she went beyond them in two respects, for which I am grateful, particularly that the Children's Commissioner would be welcome at any of these points abroad. He will no doubt want to take that up in due course. The noble Baroness reinforced what she had already said about the training of staff. It has occurred to me to wonder whether training in Calais Frethun would be in French or English. She said that anyone who did not speak English would be transferred immediately to immigration control, so that the language line would be employed. I do not think that we knew that before. If I understand the noble Baroness correctly, although persons other than the Immigration Service could arrest someone, as soon as they discover that that person cannot speak any English, they would not have the continuing power to detain which is provided for in this clause. Responsibility would have to be handed over the Immigration Service, so that the language line could be used.
	I am grateful to the noble Baroness for her offer of further discussions on commercial confidentiality, because I think that it is bogus to say that the code of conduct, which, as already has been said, equates with the PACE code of conduct in terms of principles, would in any way jeopardise the commercial rights of the firm concerned. The inference that I draw is that if the code was in the public domain, someone else could copy it. Surely, if that were the case, emulation between different contractors who are bidding to carry out those services would mean that higher standards would ultimately be achieved. Either that or the code of conduct is sufficiently constrained by the necessity to conform with the PACE principles. There would be no distinction between those that were drafted by different contractors providing these services. We are not asking for everything to be disclosed, only the code of conduct, which it is very reasonable to request bearing in mind the enormous importance of the code of conduct to the treatment of vulnerable adults and children. At this stage, we will not get any further with this discussion, but I look forward to conversations with the noble Baroness offline. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 9 not moved.]
	Clause 41 [Section 40: supplemental]:
	[Amendment No. 10 not moved.]
	Clause 56 [Deprivation of citizenship]:

Lord Dholakia: moved Amendment No. 11:
	Page 31, line 15, leave out subsection (1).

Lord Dholakia: My Lords, the Minister will recall that we were going to discuss Amendments Nos. 11, 12 and 13 on Report. Unfortunately, there was insufficient time, and the Minister and the Whip agreed that this matter could be raised at Third Reading. Again, there was ample discussion on this matter in Committee. I do not intend to elaborate much on that, other than to express our concern. Perhaps these are the most serious items in this legislation.
	Our concern is that when taking a decision to deprive someone of a right of abode or citizenship, the highest standard of test must be established, rather than a lowering of standards. We have been greatly assisted in our amendment by the briefing from the Immigration Law Practitioners' Association. The purpose of the amendment is simply to retain the current test for deprivation of citizenship; that is, having done something which is seriously prejudicial to the vital interests of the UK or a British Overseas Territory. To date, the Minister has coupled denials that this is sufficiently broad with examples that fall fairly and squarely within it. The consequential amendment is necessary because line 20 becomes the first reference to the British Nationality Act 1981 in the Act.
	Amendment No. 13 would apply to the new powers to deprive people of the right of abode the same test as is currently used and we suggest should continue to be used for deprivation of citizenship. That effectively means the existing test of having done something seriously prejudicial to the vital interests of the UK or a British overseas territory. This meets the criticisms of the clause that were voiced by the Joint Committee on Human Rights.
	Further, this amendment will take out the subjective test involved with the phrase "the Secretary of State thinks"—this came up in an argument earlier on—and replace it with the phrase "is satisfied" as for deprivation of citizenship. The Bill contains "is satisfied that", even in the rare clauses that do not amend previous legislation, for example Section 33(2), 33(7) and 36(5). Any suggestion that this is mere plain English is obviously treated by us with extreme caution. I beg to move.

Baroness Turner of Camden: My Lords, I thank the Minister for the correspondence and discussion we have had on these amendments which I tabled on Report. As the noble Lord, Lord Dholakia, said, they were not taken because it was rather late.
	The amendment to Clause 56 would preserve the current law that a person has to do something seriously prejudicial to UK interests or an overseas territory before being deprived of British citizenship. As the noble Lord, Lord Dholakia, explained, a similar amendment is proposed on the deprivation of the right to abode.
	The effect of Clauses 56 and 57 if they are not amended is that the Home Secretary need no longer be satisfied that an individual has done something seriously prejudicial to UK interests. He needs only to believe that deprivation is conducive to the public good. This is a much easier test to satisfy and is drawn from the test which must be satisfied in order to deport a person, subject to immigration control. A further effect could be that such a person could be stripped of citizenship and thereafter be at risk of deportation. This is a very serious matter for the individual concerned.
	The current test for deprivation of citizenship has been in force only since April 2003. Why is it necessary to make it far easier now to deprive individuals of citizenship? This drop in the standard of protection needs to be understood in the context that deportation itself is the most severe form of removal from the UK. The order remains in force after a person has been lawfully removed and prevents a person from returning lawfully until such time as it is revoked. This is a very important issue and it is not good enough for the test to be too general and subjective, which it is at the moment.
	Similar arguments relate to the removal of the right of abode. I do not intend to make a long speech as we are at Third Reading, but I hope the Minister will seriously consider my comments or those of the noble Lord, Lord Dholakia, because, for the individuals concerned, these are matters of extreme gravity.

Lord Avebury: My Lords, as the noble Baroness is aware, the current wording that we have in our law follows that of the European Convention on Nationality 1997. The case for widening the power of deprivation so that it can be exercised when the Secretary of State considers it would be conducive to the public good has not been made out. The proposed test is one which has been used to deport or exclude foreign nationals since the Immigration Act 1971. The Government are equating migration control with deprivation of citizenship. We think these things are completely different.
	The Minister said various things in Grand Committee and on Report about the new test. In Grand Committee she said,
	"it is fundamentally wrong for those who engage in such activities"—
	meaning the "unacceptable behaviours" which has now been covered by the amendment—
	"and who have rights of residence elsewhere to be allowed to acquire and shelter behind their British citizenship".—[Official Report, 19/1/06; col. GC 274.]
	We are talking not about acquisition but about people who are existing dual nationals who have been deprived of their British nationality.
	The Minister also said of this provision that it was intended for use against Abu Hamza and how bad cases make bad law. Abu Hamza, who is a dual British/Jordanian citizen, was gaoled in February for seven years for inciting to murder and racial hatred, and is wanted on charges of trying to set up a terrorist training camp in Oregon. On 19 January in Grand Committee the Minister referred to the effect of this clause on Abu Hamza before he was convicted. However, the Companion makes it clear that the sub judice rule would have applied equally if it had been after his conviction while he still had a right of appeal. I have been personally warned in writing by the Clerks not to refer to a particular case under consideration by the courts, so I wonder whether the Minister sought the leave of the Leader of the House to refer to Abu Hamza under paragraph 4.58 of the Companion or how otherwise she justifies the reference she made to that particular case.
	Perhaps I may leave that and make a general comment. First, when a person has been convicted of a very serious offence and an extradition warrant in another jurisdiction has been issued against him, is it a matter of immediate concern whether by depriving him of his citizenship we can send him back to his country of origin? Secondly, if incitement to murder and to racial hatred is not contrary to the vital interests of the United Kingdom, then what is? The use of this wording has never been tested in the courts, but the Minister has said that she knows of cases where the behaviour of dual citizens is not a danger to the United Kingdom, but is nevertheless completely unacceptable. In other words, the Government would interpret the power in new Section 42 as allowing them to deprive someone of his British citizenship on a subjective assessment of his behaviour, whether criminal or not. That is indeed how they have always used the powers to deport under Section 3(5) of the 1971 Act. A person I know was arrested on terrorist charges in September 1985 and was acquitted after two trials and 15 months in custody. He was then deported in December 1986 using the 1971 Act powers. We do not want that type of kangaroo justice extended into the area of citizenship.

Lord Hylton: My Lords, I agree with all those who have spoken on this group of amendments. The noble Lord, Lord Dholakia, was absolutely right to describe these deprivations as very serious matters. Personally, I would much prefer to see such action being taken only after the grounds for taking it had been considered by a court. I concede that that may not always be possible, but when it is not, that is precisely when we need the words, "the Secretary of State is satisfied" and the further wording,
	"seriously prejudicial to the vital interests of".
	I support all three amendments.

Baroness Ashton of Upholland: My Lords, perhaps I may begin with the comments of the noble Lord, Lord Avebury. He has implied that I may have said something inappropriate. I did not check with the Leader of the House and I am told by the Clerks that the rules governing sub judice do not apply to Bills, so the rule would not apply in that context. Further, in everything I say I ensure that I am given proper legal advice. If the noble Lord wishes to pursue whether I have behaved inappropriately, he is of course at liberty to do so. I recommend that he takes it up with the Leader of the House. However, as I was referring to a particular case where the powers that exist were being used and had been dealt with in 2003, I do not think I am in breach of anything. However, the noble Lord will make his own mind up about it.
	I agree with all those noble Lords who said that citizenship is seen, rightly, as a fundamental element of national and individual identity. We do not grant British citizenship lightly; nor do we contemplate deprivation of British citizenship lightly. The present criterion, referred to by noble Lords, is that the person has done something seriously prejudicial to the vital interests of the United Kingdom or an overseas territory. It is a very high test. When noble Lords invited me to indicate how often it had been used, I indicated that it had not been used because it was indeed a very high test. Our experience, on looking back over cases from the past two or three years, is that the test is too high and the hurdles too great.
	There are people living here who are—or have been in the past—war criminals, radical preachers and other activists who seek to provoke others, as well as those involved in serious and organised crime. Their activities are incompatible with the holding of British citizenship and their presence here is very much against the interests of this country and its people. For example, an individual involved in the large-scale trafficking of young women from eastern Europe for prostitution would not be covered under the current test, but could be under the test we are proposing. We are concerned that the holding of citizenship precludes the exclusion or deportation from the United Kingdom of such people. They are very few in number, but are none the less significant. We have various measures we can take against them. Our intention, of course, is to prosecute wherever possible, but we should also consider our options under immigration powers and elsewhere.
	Where one of these people holds citizenship, we will consider its removal to enable other actions, such as deportation or exclusion, to be pursued on the basis—as the noble Lord, Lord Avebury, said—of their dual nationality. Replacing the currently seriously prejudicial test with a conducive test would greatly facilitate our ability to deprive of citizenship and enable other effective action to be taken. That is the basis upon which we have put forward the proposals within this legislation. As I indicated at previous stages, the Government take their responsibilities in this area seriously, and we believe it is right that the changes should be made. On that basis, I hope the noble Lord will feel able to withdraw his amendment.

Lord Dholakia: My Lords, I thank the Minister again. It was my intention to divide the House on this particular matter, but neither the government nor the opposition Benches would forgive me if I were to do so at this late stage. I do not intend to go any further other than simply to say this to the Minister: having attended some of the citizenship ceremonies that are being held up and down the country, I wonder if the Minister could give some thought not only to telling people what citizenship is all about, but also how citizenship could be taken away when they are disloyal to this country? I think we can put that argument forward in order that people are aware of their obligations and duties. I do not think we will get any further. The Minister has been kind enough to give a lot of leeway in a number of previous amendments. In light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 12 not moved.]
	Clause 57 [Deprivation of right of abode]:
	[Amendment No. 13 not moved.]
	Clause 58 [Acquisition of British nationality, &c.]:

Baroness Turner of Camden: moved Amendment No. 14:
	Page 32, line 5, leave out "not"

Baroness Turner of Camden: My Lords, in moving Amendment No. 14 I will speak also to Amendments Nos. 17, 19 to 24, 26 and 30. This is a rather complicated set of amendments, although the arguments for them are really quite simple. The justification for the amendment is that it attempts to exempt babies, certain categories of minor and British nationals without the right of abode, from the good character test in applications for registration by entitlement. Clause 58 allows for the good character test to be extended to applications for registration as a British national. Currently this is applied only to naturalisation applications.
	Registration by entitlement recognises that there are certain people who have a right to become British under nationality law. Naturalisation, on the other hand, is only ever discretionary. The distinction between the two is therefore important. To import a lower standard of good character removes that distinction.
	People who will be affected in the main by the clause are minor children under 18. However, no justification has been advanced on public policy grounds. The good character test here goes far beyond terrorism. Although in appropriate cases there may be justification for denying someone British nationality, the good character test is too wide for that justification. A more appropriate power would in that event be that of "seriously prejudicial".
	Sections 3(2) and 17(2) of the British Nationality Act 1981 and Article 6(3) of the Hong Kong (British Nationality) Order 1986 all concern entitlement to registration for babies within 12 months of the date of their birth. The Minister said in Grand Committee:
	"Concern has been expressed that we would extend the rule to very young children or even babies . . . Of course, the rules would state that that would be a silly thing to do, and it would not happen".—[Official Report, 19/1/06; col. GC 279.]
	Sections 1(3), 1(4), 15(3), 15(4) and 17(5) of the British Nationality Act 1981 all concern registration by entitlement of minors. I welcome the Government's amendment to the effect that children under the age of 10 should not be subject to the good character test under this provision. We shall debate that amendment later. However, it appears none the less that babies born to British parents overseas who would have to register within one year of birth as British still remain on the face of the Bill, even though other categories of babies have been deleted from it. That does not make much sense. In order to be consistent the amendment proposes that that category is deleted from the Bill also.
	Although I welcome the Government's amendment I nevertheless remain concerned that children as young as 10 will be subject to a good character test. These minors have an existing right that is recognised under nationality law to become British. There is no justification for them to be subject to a good character test. We are concerned that a case might arise of a teenager brought up in the UK for some years who is unable to register on the basis of entitlement because of having received an ASBO or attended a public meeting deemed to be glorifying terrorism or some other subject. We seek assurance on that point. Children who have been troubled teenagers are not automatically bad adults or bad citizens. I beg to move.

Lord Avebury: My Lords, I support the amendment in the name of the noble Baroness, Lady Turner, and other noble Lords. I agree with what she said about the good character test as it applies to minors.
	I also welcome the concession that the Minister made that children under 10 will not be subject to a good character test. However, I question whether the age of criminal responsibility—which the noble Baroness mentioned at some point during our proceedings in Grand Committee or on Report; I cannot remember which—is a satisfactory criterion to use.
	The 1981 Act does not give a definition of good character. The nearest I can come to it is a Written Answer by Mr McNulty in another place in which he said:
	"As part of the naturalisation process a police record check is made into all applicants. A check is also made on older minors".
	I do not know whether he meant that, at the stage when he answered the Question in October 2005, the limit of 10 years of age had already been introduced as a matter of administrative practice rather than as a law. I should be grateful if the noble Baroness would clarify that.
	Mr McNulty continued:
	"In assessing whether any previous criminal activity would affect a person's ability to meet the good character requirement, we would take into account the nature of the offence, the age of the offender and the length of time that had elapsed since conviction. If sufficient time free of further offending had not elapsed since the offence, the application would normally be refused".—[Official Report, Commons, 19/10/05; col. 1031-32W.]
	We need only look to see what happens in cases of application for naturalisation.
	I once had a case where the applicant was a bank manager married to a Swedish citizen. They would go home every summer to her parents in Sweden for the holidays—it was a regular occurrence. This person had an international driving licence, which he renewed while in Sweden. The question put to him by the interviewing officer with respect to his application was, "Have you ever applied for a British driving licence?" He said that he had, but that it had not been convenient for him to take the test, which was why he continued to rely on the international driving licence.
	When, after persistent and relentless inquiry, I persuaded the Home Office to tell me why the man's application for citizenship had been refused, I was told that it was because he had dishonestly pretended that he had taken the driving test in the United Kingdom—but he had done no such thing. There may have been a difference of interpretation in what he had said in answer to the questions, but he was quite definite in asserting that he had never taken the test and never said that he had—and that he had told the interviewing officer that he continued to rely on his international driving licence. A triviality of that kind denied him citizenship, although, when he applied again three years later, that was overlooked.
	Do we really want that kind of test to be applied to those that this clause concerns? I believe that the age of 10 is not an appropriate one to have in the Bill, although it is better than where we started. I wish that the Minister had made a little more effort to look at the arguments that older children—up to the age of 18, as we believe—should not be subject to this test.

Baroness Ashton of Upholland: My Lords, it is interesting to discuss what is in the eighth group before what is in the ninth, as I would like to have dealt here with the amendment that I have put forward. I shall try to deal with this group of amendments in the right context.
	We believe that it is right and proper, in general, that we should be able to say that those who have engaged in drug dealing, paedophilia or war crimes—those who are guilty of such serious crimes—fail to meet a good character test, in order to exclude them from the granting of nationality. That is important, which is why we have put these clauses in the Bill. The proposed alternative—that the Secretary of State must grant registration unless satisfied that the applicant has engaged in conduct "seriously prejudicial to" vital state interests—does not capture the group of people whom we might wish to. It raises considerably the threshold for refusing registration from that currently being proposed. As I have indicated, it would not allow us to refuse an applicant who had engaged in serious criminal behaviour, much of which would fall short of what could be described as actively or "seriously prejudicial to" vital state interests. For that reason, I will not be able to accept Amendments Nos. 14 and 17.
	I am not sure whether Amendments Nos. 19, 20, 23 and 24 would do what my noble friend Lady Turner intended. What they actually do is make acquisition of nationality at birth, by foundlings and on adoption conditional on good character. I think that that is exactly the opposite of what my noble friend is seeking to do. In other words, she does not want to bring in a good character test for those children at all. I am not accepting the amendments because, as my noble friend is indicating, she does not actually want to do that. Unfortunately, that is the way those amendments are worded.
	My noble friend Lady Turner and the noble Lord, Lord Avebury, also raised the question of those who are over the age of 10, an age that we will deal with in the next group. My noble friend described the issue of troubled teenagers; I accept that one has to put into context the matter of young people who have perhaps had issues. I take the point made by the noble Lord, Lord Avebury, about those who have perhaps had anti-social behaviour orders. It is relevant to consider that there are young people who may have committed quite serious offences with whom we would wish to engage in terms of considering good character. I do not accept the premise that a 17 year-old or a 16 year-old is not responsible. That is where we come to the age of 10.
	The noble Lord, Lord Avebury, asked whether my honourable friend Mr McNulty had considered the age of 10 a few months ago. The first time that it came up was when I raised it in your Lordships' House having thought about it earlier in the day. I am wholly responsible for the amendment, which I am glad to say my honourable friend Mr McNulty was happy to go along with. It is entirely me—he is not responsible in any way for it. We think that we have captured what noble Lords were rightly saying about children and that we have captured it in a way that recognises that, within our law, we have an age of criminal responsibility. I will come on to that.
	I am happy to accept Amendment No. 21. When we come to the next group, noble Lords will find that it fits perfectly well with what we are seeking to achieve. On Amendment No. 30, which is about the under-sixes, our Amendment No. 29 has the same effect but will provide greater legislative clarity. We just think that our amendment is better drafted. I hope that on that basis my noble friend will feel able to withdraw her amendment. This is an important test and we have positioned it appropriately. We have recognised the issues that were raised about children, which we will come on to deal with. On the basis of what I have said, I hope that my noble friend will feel able to withdraw her amendment.

Baroness Turner of Camden: My Lords, I thank my noble friend for that response. I do not agree with her about the restriction to age 10. I wish that we had persuaded her to move to 18, but we will not be able to do so this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland: moved Amendment No. 15:
	Page 32, line 5, after "registration" insert "of an adult or young person"

Baroness Ashton of Upholland: As noble Lords know, the provision that now forms Clause 58 would extend the requirement for nationality applicants to satisfy the Secretary of State that they are of good character to all such applicants, except those seeking to exercise an entitlement derived from the 1961 UN Convention on the Reduction of Statelessness. Our amendments to this clause on Report made a further exception for those seeking to register as British citizens on the basis that they are already British overseas citizens, British subjects or British protected persons and hold no other nationality or citizenship.
	Amendments Nos. 15, 16, 25, 27, 29 and 32 would, taken together, make an additional exception in respect of those aged under 10 on the date of their application for citizenship. As I indicated on Report, it would be extremely foolish to subject very young children to character checks before granting them British nationality. It was never our intention to do so, and I trust that the statutory exemption for which this amendment provides eliminates any remaining doubt about our plans to apply this new power to withhold citizenship in a sensible and targeted manner. I beg to move.

On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 16:
	Page 32, line 7, after "the" insert "adult or young"
	On Question, amendment agreed to.
	[Amendment No. 17 not moved.]

Lord Avebury: moved Amendment No. 18:
	Page 32, line 7, at end insert "; provided that the provisions of this subsection shall not apply to an applicant who is a—
	(a) British citizen,
	(b) British overseas territories citizen,
	(c) British Overseas citizen,
	(d) British National (Overseas),
	(e) British subject, or
	(f) British protected person."

Lord Avebury: My Lords, I apologise for having to revisit the subject of tests for registration when we have already covered the matter very thoroughly. The first amendment in this group provides that any person who is a British citizen and who has no other nationality and has not renounced any other nationality should be entitled to the same benefit as those who were covered earlier in the clause. They would not have to satisfy the good character test.
	Amendment No. 28, to leave out paragraph (d), would exclude people who register under the British Nationality (Hong Kong) Act 1997 from the good character test. I will not go into the arguments that have already been discussed today about the inappropriateness of subjecting a person who is solely a British national and is de facto stateless to a good character test in order to acquire British citizenship. Is it lawful to impose such a requirement on applicants for citizenship in the light of our obligations under the 1961 UN Convention on the Reduction of Statelessness? British national overseas status, like the status of British overseas citizens, British subjects and British protected persons, does not carry the right of abode anywhere. A British national overseas, who is not Chinese, will automatically lose the right of abode under the Hong Kong immigration ordinance if he ceases to be ordinarily resident in Hong Kong and has been absent for a continuous period of more than 36 months after obtaining settled status in any other place.
	As your Lordships will be aware, being settled in a country with no time limit on your stay does not amount to nationality or citizenship. Even in Britain, we have numerous long-term residents who are unable to obtain British nationality and can be removed at the pleasure of the Secretary of the State, if he thinks it conducive to the public good. Like the vast majority of British overseas citizens, British subjects and British protected persons coming under Section 4B of the 1981 Act and ordinarily resident outside the UK, the group of persons covered by Amendment No. 28 are solely British and have no entitlement to any other nationality. It is a contradiction in terms for somebody who is already British and holds solely a British passport to be refused citizenship of this country.
	There is one other important point to be considered on this amendment. In the run-up to the handover of Hong Kong to China in 1997, we extended what was then termed a "cast-iron guarantee" to the solely British ethnic minorities of Hong Kong. They were told that they would be admitted to the United Kingdom and would have an entitlement to register as British citizens. It is a disgrace for us now to renege on a commitment that we made to this group of solely British people.
	Amendment No. 33 is of a different nature altogether. I would have asked for it to be degrouped had I not realised that it had been put with this group only when I came into the Chamber. As a matter of form, I wish that the groupings of amendments could be issued by the Government Whips' Office somewhat earlier in the day than was the case today. I know that that is not a matter for the Minister, but now it is on the record. I see the noble Lord, Lord Grocott. I do not know whether he heard what I said, but it would have been convenient to have had the groupings much earlier than we did, instead of having to look at them just as we came into the Chamber.
	This amendment seeks to bring British nationals overseas into Section 4B of the British Nationality Act 1981. It follows the amendment that we tabled at an earlier stage to achieve the same effect by removing the "ordinarily resident" requirements of the 1997 Act, but I hope that your Lordships will agree that this present drafting is clearer and more elegant. The Nationality, Immigration and Asylum Act 2002, by inserting a new Section 4B into the 1981 Act, gave otherwise stateless British nationals the right to register as British citizens as long as they were solely British and irrespective of where they were resident. When the Home Secretary announced in July 2002 that he was tabling an amendment to the then NIA Bill, he said that it would "right a historic wrong" that had left stateless tens of thousands of Asian people who had worked closely with the British colonial administration. Fiona Mactaggart, who is now a Home Office Minister, said that the coming into force of Section 4B meant that,
	"the most racialist underpinning of Britain's immigration and nationality laws is about to be swept away".—[Official Report, Commons, 5/11/02; col. 147.]
	In enacting this amendment, we will remedy the limbo status of probably the last remaining group of solely British nationals who have no other nationality or citizenship, who have not recently and deliberately given up another nationality or citizenship and yet who do not come under the provisions of Section 4B of the 1981 Act despite having no entitlement to acquire the citizenship of any other country. The group in question are solely British nationals overseas who were not ordinarily resident in Hong Kong on 4 February 1997 and can never satisfy the requirements of the 1997 Act. Consistent with the policy that all otherwise stateless British nationals without the right of abode in the United Kingdom should have the entitlement to register as British citizens, this small group of people should be entitled to do so, too. They hold only British passports, their sole identity is British and yet they do not have the right to reside in any British territory.
	We have a strong obligation to this group of people under the UN Convention on the Reduction of Statelessness, Article 10.1 of which says:
	"Every treaty between Contracting States providing for the transfer of territory shall include provisions designed to secure that no person shall become stateless as a result of the transfer. A Contracting State shall use its best endeavours to secure that any such treaty made by it with a State which is not a Party to this Convention includes such provisions".
	The 1984 Sino-British joint declaration on Hong Kong made specific provision for the indigenous Chinese population of Hong Kong to be recognised as Chinese citizens. Despite our convention obligations, it made no provision for the non-Chinese, solely British ethnic minorities of Hong Kong to acquire proper citizenship. That was made clear by the current Foreign Secretary, Jack Straw, who, on 30 January 1997, said that,
	"common sense and common humanity demand that we give these people full British citizenship. The limbo in which they will find themselves in July arises directly from the agreements which Britain made with China".
	I know that the Minister has considered this matter and that she did not see the force of the arguments that we put earlier. However, I hope that she will be convinced by what I have said this evening and agree to this amendment. I beg to move.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord for again putting forward his views on this issue and for recognising some of the work we have done.
	We are not suggesting in what we are doing that people cannot come, but it is appropriate to use the good character test for the reasons I gave in response to the previous set of amendments. It is important to be clear that there are people who have committed serious crimes—examples of which I gave earlier—whom we might wish to prevent gaining British nationality.
	To deal with the issues raised, our starting point was that we should not apply the good character requirement to those whose entitlement to registration derives from a provision of the 1961 UN Convention on the Reduction of Statelessness. The Government then additionally agreed to exempt from the good character requirement those seeking to register as British citizens on the basis that they are already British overseas citizens, British subjects or British protected persons and hold no other nationality or citizenship. They have not made a general exception for all such nationals or for all such stateless persons. The noble Lord's amendment, as he has indicated, would introduce such a general exception, and the effect would be far reaching, since a significant proportion of those able to apply for registration are people who have some other form of British nationality. This is in direct conflict with the Government's commitment to seeing that the vast majority of those seeking to register are of good character.
	As to the amendments relating to applicants under the 1997 Act, and British overseas nationals in general, these groups invariably have a right of residence in Hong Kong. Indeed, applicants under the 1997 Act are required to have been "ordinarily resident" there on particular dates—a concept which, while not necessarily equating to possession of a right of permanent residence there, at least implies lawful and, for the time being, stable residence in Hong Kong.
	In 1997, those with only British nationality were told that they would be admitted to the UK if conditions deteriorated in Hong Kong, not that they would be given British citizenship. I do not believe that we have reneged on the agreement that we reached. British overseas territorities citizens normally have the right of abode in the British overseas territory from which their citizenship derives. By contrast, the right of many of those eligible for registration under Section 4B of the 1981 Act to remain in their countries of current residence is at best precarious. It was this lack of a secure residence in any country that prompted the Government to announce on 4 July 2002 their intention to introduce a provision now having effect as Section 4B, and which at Report stage prompted us to move for their exemption from the good character test, which was welcomed.
	We do not accept the position of those qualifying for registration under the 1997 Act, or of British nationals in general, is sufficiently close to that of persons presently entitled to registration under Section 4B of the 1981 Act to justify the support that the noble Lord's amendments clearly seek. Nor do we accept obligations towards stateless persons going beyond those we have accepted by ratifying the 1961 convention. It is always sad to disappoint the noble Lord, but I believe that the Government have the balance right. While wishing to continue to raise these issues, I am sure that the noble Lord will feel able to withdraw his amendment.

Lord Avebury: My Lords, the noble Baroness will be relieved to hear that I shall not go over the registration point again, but I wish to take issue with her on the last amendment and what she said about the rights of abode of people other than those covered by this amendment. She said that they were precarious and that that was the reason for including them in Section 4B. I do not agree with her. Apart from the case of Idi Amin, which was some 38 years ago, the other persons whom she says have only a precarious right of abode in the territories where they reside are in fact secure. I cite the people who live in countries such as Malaysia, for instance. It is a functioning democracy with rules of human rights. It will not suddenly kick out people who have a second-class British nationality.
	The noble Baroness said in a letter that she wrote to me the other day, for which I am most grateful, that there was a difference between the people that we are seeking to bring into Section 4B and all those other groups who are now enfranchised, as it were. I investigated whether there have been any other cases since the days of Idi Amin when British citizens have been kicked out of a territory where they had what the Minister calls a precarious right of abode. I could not find any. If the noble Baroness has evidence of that, I shall be delighted to hear it. It is not a matter that we can pursue this evening, but once again perhaps we can put it on the list of unfinished business that she and I can discuss when the Bill has gone to another place. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 19 and 20 not moved.]

Baroness Turner of Camden: moved Amendment No. 21:
	Page 32, line 9, leave out ", (2)"
	On Question, amendment agreed to.
	[Amendments Nos. 22 to 24 not moved.]

Baroness Ashton of Upholland: moved Amendment No. 25:
	Page 32, line 12, leave out ", (2)"
	On Question, amendment agreed to.
	[Amendment No. 26 not moved.]

Baroness Ashton of Upholland: moved Amendment No. 27:
	Page 32, line 15, at end insert "and"
	On Question, amendment agreed to.
	[Amendment No. 28 not moved.]

Baroness Ashton of Upholland: moved Amendment No. 29:
	Page 32, line 17, leave out from "citizen)" to end of line 19.
	On Question, amendment agreed to.
	[Amendments Nos. 30 and 31 not moved.]

Baroness Ashton of Upholland: moved Amendment No. 32:
	Page 32, line 19, at end insert—
	"(2A) In subsection (1) "adult or young person" means a person who has attained the age of 10 at the time when the application is made."
	On Question, amendment agreed to.
	[Amendment No. 33 not moved.]

The Earl of Listowel: moved Amendment No. 34:
	After Clause 59, insert the following new clause—
	"IMMIGRATION SERVICE: WELFARE OF CHILDREN
	In section 11(1) of the Children Act 2004 (c. 31) (arrangements to safeguard and promote welfare), after paragraph (m) insert—
	"(n) a regional office of the National Asylum Support Service;
	(o) the centre manager of an immigration removal centre;
	(p) the Chief Immigration Officer at a port of entry.""

The Earl of Listowel: My Lords, I shall endeavour to be brief at this late hour but also to do justice to the matter. Perhaps I may refer to the debate on contracting out for searches. I omitted to underline the importance of ensuring that Home Office monitors are properly equipped and trained. Perhaps the Minister will write to me on that point.
	The amendment places a duty on various elements of the Immigration Service to give regard to promoting and safeguarding the welfare of children while performing its functions. I emphasise the duty to give regard. It is a soft duty which is already on the police service and Prison Service and does not interfere with their primary function.
	I apologise for raising the matter at Third Reading. It does not fit the criteria we have been advised to accept. I hope that noble Lords will understand the unusual circumstances. At a late stage of the Bill, the Children's Commissioner and the Chief Inspector of Prisons gave oral evidence to Sub-Committee F of the European Union Committee. The sub-committee deals with home affairs. They expressed considerable concerns about the welfare of children in the Immigration Service. That prompted me to table an amendment on Report.
	I am grateful to the Minister for her time in discussing the matter today and for the hope which was offered at that meeting. I refer to Yarl's Wood as an example where things have not been working. In doing so, I pay tribute to the men and women who work in that institution. The concerns are no reflection on their good will and the wish to do the best for the families detained. It is a reflection on the quality of thinking underlying the establishment of the facility just over a year ago. Improvements have been made but they have been slow and there is still a long way to go. The lack of partnership between the detention centre and local social services and the connection with those making decisions in the Home Office were identified as matters of serious concern by the joint chief inspectors in their report on safeguarding children. I hope that the amendment will contribute to addressing such an issue in future.
	I recognise the immense difficulty that the Government face. Some noble Lords may have heard Mr McNulty this morning on Radio 4. It is an extremely delicate and difficult matter. In the report by the noble Lord, Lord Laming, on the death of Victoria Climbié, a deputy manager of social services said that they lost their ability to be social workers because of the time they had to spend dealing with asylum seekers. There were no additional resources to cope with it. One must seek to manage migration in a sensible way and avoid too much pressure on scant resources in certain areas.
	The Minister expressed concern about the legal implications and the implications for the successful removals of failed asylum seekers and irregular migrants. I hope that the legal opinion I gave her yesterday and circulated somewhat late to noble Lords—I received it only this weekend—may reassure the noble Baroness. It is a mild duty. She has a concern about education, in as much as a child being educated in this country might be removed to a second country that has a poorer education system, and the amendment might be used to resist that removal because a child should not be given a poorer education. That point is already covered by the European Convention on Human Rights. There was a case involving the prevention of the removal of a child. It focused on primary education. That case, the Holub case, was not accepted. I emphasise that this is a duty to give regard—a very weak duty in terms of judicial review.
	In conclusion, I apologise once again for bringing this difficult matter back at Third Reading and I hope that noble Lords will appreciate the circumstances. I hope that the Minister will feel able to accept the amendment, or at least give an undertaking actively to review the area, look at guidance and see whether that might be improved. I look forward to her response. I beg to move.

Lord Dholakia: My Lords, the noble Earl, Lord Listowel, was kind enough to discuss this matter with us on a number of occasions. He was also kind enough to let me glance at the legal opinion that he had in his possession. He has expressed repeatedly his concern about the welfare of children, particularly in relation to immigration, detention and the National Asylum Support Service. I hope that the Minister will take serious note of his concern and see how the matter could be kept under constant review, so that the case of children is not forgotten.

Lord Avebury: My Lords, will the Minister say in her reply whether she has had sight of the distinguished counsel's legal opinion that the noble Earl, Lord Listowel, was kind enough to copy to my noble friend Lord Dholakia and me, which contradicts the Minister's repeated assertion that if the amendment were passed the immigration system would become unworkable? I wonder whether the Minster has had time to study that. If she has not yet done so, could she do so and convey further advice to her colleagues in another place who will have to consider the matter in further detail.

Baroness Turner of Camden: My Lords, I was happy to put my name to this amendment when approached by the noble Earl, Lord Listowel. Of course, he is quite right. The National Asylum Support Service should be obliged to have regard to safeguarding and promoting the welfare of children. That should be part of its duty. I hope that we will have a sympathetic response from the Minister this evening.

Baroness Anelay of St Johns: My Lords, I am breaking my vow of silence on the last six groups to contribute on this matter. I do not want to give the noble Earl, Lord Listowel, any hope that I would support requesting the Government to accept the amendment, but it is right to bring it back on Third Reading. This is one of those occasions when there is justification for further assurances to be sought from the Minister, because of the developments that have taken place during latter debates on this Bill.
	As I said on Report, this is an important matter because it affects directly the question of how the welfare of children is to be safeguarded and promoted when they are in contact with immigration services. The noble Earl's amendment highlighted what I believe is a significant tension between the policies of protecting children as set out in the Children Act 2004 and policies that require the speedy removal of those who have sought asylum here but have not been granted leave to remain. As well as policies that govern the treatment of those children caught up in non-asylum cases, we have those in relation to asylum cases.
	I must say that that is a tension that I have found impossible to resolve in my discussion with my colleagues with other departmental responsibilities. So, admirable although the intentions of the amendment are, within the context of the Bill, it is impossible to make progress. However, the underlying issues need to be addressed by us all in future. We need to continue to challenge Home Office policies on that, even when we do not oppose them, to make the Home Office think how it is to take forward the welfare of children within the immigration system. I would be grateful if the noble Baroness would let us know whether it is being considered that one way forward could be to have cross-departmental work on the matter. That is often a proactive way forward, where one gets key people who have real enthusiasm for something to happen in departments to work together, so that we can try to reconcile the principles and contradictions between the Children Act and the responsibilities of IND.
	It would be useful to know what action the Minister for Children has taken and will take on the matter. If the noble Baroness is undecided on the matter, I should be happy if she were to write to me. That is something that we need to consider in future.
	As a result of the noble Earl, Lord Listowel, bringing forward the amendment at our previous stage, I immediately tabled a Written Question asking the Government how many children were detained in February this year in asylum removal centres. I was told that internal management information showed that, as at 20 February 2006, 37 children were detained with their families under Immigration Act powers, all of them at Yarl's Wood immigration removal centre. We would expect that. The children were all detained as part of families whose detention the Government considered to be necessary as a group. I was certainly interested to read the report by the Children's Commissioner of an announced visit to Yarl's Wood immigration removal centre last October, which was the basis of the evidence given to the Select Committee to which the noble Earl has already referred.
	It is important at this stage to note that disturbing conditions were highlighted in that report of children having to go through locked door after locked door. One needs only to read the report to see what picture is built up of the impact of detention on children. As ever, we say—at least, I say—that there are circumstances in which I must support detention. I know that I may part company with the noble Earl on that; however, I feel that, although the parents have chosen a road that leads to their detention, it is not the children's fault. Despite that, governments have to take hard decisions and one of them may be to detain children who are part of a family group.
	I was very interested to note in the conclusions that Yarl's Wood was trying to take significant steps to improve the conditions for children in its care. As a result of that, it is important for the House to ask the Government today not only to respond to the points of the noble Earl and say whether the Home Office has been able to take forward recommendations about how children's conditions may be improved, but outside the remit of the Bill to take the matter forward by pressing the Government in a series of debates. I return to where I started by saying that I cannot support the noble Earl, because I cannot see how the Bill will resolve this especially difficult issue.

Baroness Ashton of Upholland: My Lords, first, I want to deal with the issue of apologies. I shall say this only once to the noble Earl: he really, really, really should not apologise for bringing up these issues. I think that I speak for everyone in your Lordships' House when I say that we have nothing but admiration for how he constantly reminds us of our responsibilities for children. Please do not apologise any more. There is absolutely no need to do so. I apologise to the noble Earl for having left my place to go to the Box, but I am about to go off-message from my notes and it is always wise to warn my officials that that I am about to do so.
	I agreed with the noble Earl that I would say something about monitors. As I was dealing with the earlier amendment, I was wracking my brains to remember the one thing that I had forgotten. We were talking about the children's champion and I said that I would ask the children's champion within IND to consider the monitoring arrangements. I hope that that will address that point. Of course, the noble Earl can come back to me if that is not right. Perhaps I may also say how much we welcomed the children's commission report on Yarl's Wood and readily agreed that it should return to see the changes and initiatives that have been prompted by it. I know that noble Lords will want to keep in touch with it.
	As I said, I will go off-message on to my own notes. I have indicated at previous stages why I cannot accept the amendment. The noble Baroness, Lady Anelay, and I are in the same place on the issue: there are tensions in the system raised by the amendment. We could not accept an amendment under the legal opinion that I have—I will return to the points made by the noble Lord, Lord Avebury—because we believe that it could create circumstances where it could be used as a means of delaying or preventing people from being returned home, which we could not do.
	I turn to the point raised by the noble Lord, Lord Avebury. I saw the legal opinion for the first time this morning. It was received late last night but I was doing other work and I did not get to see it until this morning, so I have not had time to study it as the noble Lord requested. However, it has influenced me to the extent that I recognise that those involved in the Home Office need to study it because, as he said, it is an important legal opinion and we will deal with it appropriately.
	I agree with what the noble Baroness, Lady Anelay, was saying about the potential to think about the issues in a broader way. I and my noble friend Lady Scotland of Asthal sit on a committee that meets under the auspices of the Minister for Children, whom I cannot say has considered the issue in detail, but it might be an appropriate forum. I will steal that suggestion with grateful thanks and see if there is a way in which we might be able to take it further forward rather than setting up something separate to do so. I want to commit us to take the issue further forward because I cannot accept the amendment, and if the legal opinion stands I will not accept it; I make no commitment to it, but we are back to the underlying issues within the amendments of trying to make sure that children are properly looked after and catered for—if I may describe it like that.
	I want to commit to take the issue back to IND and ask it to carry out the kind of review that noble Lords are looking for across all the children's issues, part of which I committed to on earlier amendments, with a view to coming back to address the issues properly. The children's champion is in place—I do not know him but I know that the noble Earl was pleased to see that he is in that position. The noble Earl and I discussed earlier what process I need to follow. I want to add my personal commitment, because I have taken the Bill through, but I am committing everyone else too.
	I do not quite have an answer and perhaps the noble Baroness, Lady Anelay, can help me afterwards because we need a mechanism for the issue to come back. It may be through the traditional mechanisms of an Unstarred Question, a Starred Question or a Written Question, but I will commit that we will find a way of doing it: we will seek to continue the debate and to address the issues properly. On that basis alone I commit to take forward the issue, to review the legal opinion, to make sure that we are right to reject it for the grounds I have given but to seek to deal with the underlying issue, which the noble Earl and other noble Lords feel strongly needs to be dealt with. I hope that on that basis he will be able to withdraw his amendment.

The Earl of Listowel: My Lords, I thank the Minister for her undertaking that Jeremy Oppenheim, the children's champion at the Immigration and Nationality Directorate, will meet the Children's Commissioner to discuss the issue; that she will carefully review the legal implications of the amendment; and that she will ensure that a report will come to me on the problem. I appreciate greatly the assurances. The response is most encouraging and significant progress has been made since Report stage.
	I also thank noble Lords who put their names to and spoke to the amendment in a helpful way. I am reminded that tonight at Yarl's Wood families will be behind bars, seeing the officers there in their prison-style uniforms with their long keychains. I recall one mother's question to me there on one of my visits: "What do I tell my five year-old child when he asks me what he has done wrong to be placed here?". It is a very difficult issue and it needs to be given careful attention. I am very grateful to the Minister for her encouraging response, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 62 [Commencement]:
	[Amendments Nos. 35 and 36 not moved.]

Baroness Ashton of Upholland: My Lords, I beg to move that this Bill do now pass.
	Moved, That the Bill do now pass.—(Baroness Ashton of Upholland.)
	On Question, Bill passed, and returned to the Commons with amendments.

London Olympic Games and Paralympic Games Bill

Lord Grocott: My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the London Olympic Games and Paralympic Games Bill, have consented to place their Prerogative and Interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Bill read a third time.
	Schedule 3 [Olympic Symbol Protection]:

Lord Davies of Oldham: moved Amendment No. 1:
	Page 39, line 23, leave out "as a necessary incident of" and insert "in"

Lord Davies of Oldham: My Lords, in speaking to Amendment No. 1, I shall also speak to Amendments Nos. 2, 3, 4, 6 and 7 in my name, and will make a passing reference to Amendment No. 5 in the name of the noble Lord, Lord Clement-Jones.
	I am pleased to introduce these amendments, which give broadcasters and publishers greater certainty that editorial and journalistic practices will not be adversely affected by the London Olympics association right. This issue has been debated at some length both in Committee and on Report. There has been a clear uniformity of purpose on both sides of the House in those debates about what the Bill should do. I think that, without question, we all agree that the press should be free to report or comment on any aspect of the games without fear of infringing the London Olympics association right.
	Noble Lords have expressed concerns that the current draft of the Bill, specifically the term "necessary incident", would inhibit editorial freedom and give LOCOG a wholly unacceptable role in judging what is classified as editorial content in relation to 2012. That was clearly never the Government's intention. What we sought to do in paragraph 8 of Schedule 4 was to provide an absolute fail-safe to ensure that journalistic and editorial activity would not fall foul of the London Olympics association right. But in creating that exemption for journalistic and editorial activity, we wanted to ensure that we did not create a loophole that an unscrupulous advertiser could exploit. That was the rationale behind the inclusion of the term "necessary incident" in paragraph 8 of Schedule 4; it was nothing more sinister than that.
	I have listened carefully to noble Lords on the Front Benches of both the Opposition parties and to the representations from broadcasters and newspaper publishers on this issue. Although our clear legal advice was that the current drafting of paragraph 8 of Schedule 4 would not have the effect that caused noble Lords such concern, I understand the confusion and unease that "necessary incident" created in the publishing and broadcasting industries. That is why I have taken the opportunity to table these amendments today to provide greater clarity about the effect of the exemptions in paragraph 8. My amendments would exempt publishing or broadcasting reports or information about the 2012 games from infringing the London Olympics association right. It is important that these exemptions will not apply to advertising materials that are published at the same time as, or in connection with, a report or information. In effect, that ensures that no form of advertising will enjoy the same exemptions as we have created for editorial and journalistic use.
	At this point, I should also put on record the fact that my amendments do nothing to change the effect of paragraph 8(d) of Schedule 4. This paragraph ensures that publishers and broadcasters are allowed to advertise and use promotional time to publicise the report or information that they are providing. For example, a broadcaster would be able to promote or advertise the fact that it is running a current affairs programme about the Olympics or that its sports bulletin will include the latest information on the 2012 games.
	Although the debate on these amendments was triggered by consideration of the London Olympic association right, the principle applies also to the Olympic and Paralympic association rights created in existing Olympic symbols protection legislation. That is why I have tabled a similar amendment to Schedule 3, which amends the Olympic Symbol etc. (Protection) Act.
	In tabling these amendments, the Government have recognised the genuine concerns that the London Olympic association right could have adversely affected the freedom of the press—an intention, which none of us had. I note that the noble Lord, Lord Clement-Jones, who has argued so persuasively on this issue, has tabled Amendment No. 5, which has an effect similar to the amendments which I have put forward. I hope that now that he has had the chance to consider the new amendments, and the assurances that I have given the House about their effect, he will be satisfied that the Government have addressed his concerns. I therefore ask him not to move his amendment, and that all noble Lords accept the amendments that I have tabled today. I beg to move.

Lord Clement-Jones: My Lords, I thank the Minister very much for putting forward the amendments in the way that he has. I hope that he will not be too disappointed if I do not speak to Amendment No. 5, which was tabled purely as a precaution. We are delighted with the amendments, as I am sure are all noble Lords who spoke so strongly in favour of the previous amendments, which were designed to clarify the point that the Minister has made. I know that the newspaper and broadcasting industry are very pleased, not to say relieved, that that clarification has been given. I cannot resist thanking the Minister for going the extra mile beyond the legal advice that he received. Clearly, there was some conflict in that respect.
	More generally, I thank the Minister for responding extremely helpfully to the concerns raised throughout the Bill. We made it clear from the outset—the noble Lord, Lord Glentoran, said the same thing—that we were pressing only the key concerns on the Bill. There was nothing frivolous about the points that we made. Of course, we were supported by very strong representations from the Back Benches on both sides of the House. The noble Lord, Lord Borrie, is in his place. He was an extremely effective advocate. I cannot resist also awarding medals to all those involved in the debate in Committee, on Report and at Third Reading, particularly to the Minister, to whom I am extremely grateful.
	Further amendments on Report were very welcome to the advertising industry. It is very pleased that its rights to consultation will be enshrined in the Bill. Above all, the great prize during the passage of the Bill was the change from the automatic presumption of liability under the London association right to a much more balanced approach, which gave great relief to those who will have to judge, or try to judge, on behalf of their customers and clients whether they will be infringing. I am very pleased that we have got to the tape in such good shape. We are very supportive of the Bill in its current form.

Lord Glentoran: My Lords, I would like to reiterate a lot of what the noble Lord, Lord Clement-Jones, has said. It has been an interesting Bill. We had some aggressive and strong lobbying from various parts of the advertising and media industries and one or two other people from different directions—including LOCOG—so it was not all one-sided. The Minister and his Bill team have been in serious listening mode throughout Committee and Report stages and in a number of meetings that we have had with the Minister in his office—sometimes with and sometimes without his team.
	We have worked to one end. As the noble Lord, Lord Clement-Jones, said, there have been some notable and strong speakers from all around the House—all with one objective: to do as much as we can to make sure that we get this Bill right in order to create the best possible environment from this House to allow local bodies and the Olympic Delivery Authority to go ahead and make the event a huge success which we desperately want. I want to finish by thanking the Minister, his Bill team and all of those who have been concerned in the whole way this Bill has been tackled. If democracy in this country could run on the sorts of lines that we have debated this particular Bill, this country would be a better place than it is.

Lord Borrie: My Lords, I add my thanks to my noble friend, particularly for what he has said in relation to the amendments this evening. When I spoke in favour of such amendments on Report, I spoke fervently—possibly aggressively—in favour of freedom of the press and may, thereby, have implied that he was in some way less in favour of freedom of the press than myself. I know that is not the case and that he has been a fine example of the Government being a listening government. I am most grateful for his amendments this evening.

Lord Davies of Oldham: My Lords, I am grateful for all sentiments expressed, particularly because we are considering an amendment which we have not even reached yet. That is an excellent bonus. I also pay tribute to my Bill team, who have done an excellent job. I hope that the spirit that we have all got with regard to this Bill will follow all efforts with regard to the Olympic Games. Indeed, I never had any doubt that—as far as this House is concerned, and as is true of the whole nation—that we wish the London Games in 2012 to be the greatest success that we have mounted in sporting terms. It is a fine ambition and we have done a small amount towards achieving that end.

On Question, amendment agreed to.

Lord Davies of Oldham: moved Amendments Nos. 2 and 3:
	Page 39, line 26, leave out "as a necessary incident of" and insert "in"
	Page 39, line 33, at end insert—
	"(1A) But the exceptions in subsection (1)(a) and (b) do not apply to advertising material which is published or broadcast at the same time as, or in connection with, a report or information."
	On Question, amendments agreed to.
	Schedule 4 [London Olympic Games Association Right]:

Lord Davies of Oldham: moved Amendment No. 4:
	Page 50, line 1, leave out "as a necessary incident of" and insert "in"
	On Question, amendment agreed to.
	[Amendment No. 5 not moved.]

Lord Davies of Oldham: moved Amendments Nos. 6 and 7:
	Page 50, line 3, leave out "as a necessary incident of" and insert "in"
	Page 50, line 10, at end insert—
	"(2) But the exceptions in sub-paragraph (1)(a) and (b) do not apply to advertising material which is published or broadcast at the same time as, or in connection with, a report or information."
	On Question, amendments agreed to.
	On Question, Bill passed, and returned to the Commons with amendments.
	House adjourned at twenty-one minutes before ten o'clock.

Tuesday, 14 March 2006.